United States District Court, D. New Jersey
OSBORNE S. MALONEY, Petitioner,
PATRICK NOGAN, et al., Respondents.
L. WOLFSON, U.S.D.J.
matter has been opened to the Court by Petitioner Osborne S.
Maloney's filing of a pro se petition for a writ
of habeas corpus challenging his New Jersey state court
conviction pursuant to 28 U.S.C. § 2254. For the reasons
explained in this Opinion, the Court will deny the petition
and will also deny a certificate of appealability.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
State alleged that Petitioner was part of a four-person
conspiracy to commit a targeted armed robbery of business
owner Syoma (“Sam”) Shnayder and his wife Rita at
their home on August 19, 2005. The State's theory of the
case was that Igor Chichelnitsky was the ringleader, Nathan
Jakubov was driver of the getaway car, and Petitioner and
Juan Rodriguez executed the planned armed robbery, which went
awry and resulted in Sam being shot in the abdomen by
Petitioner. The four men were arrested shortly after the
pleaded guilty to armed robbery and testified against
Petitioner at trial. (See ECF No. 13-1, Trial Tr.
dated 9/22/2009 at 63:1-65-6.) At trial, Rodriguez testified
that he, Petitioner, and Jakubov “scop[ed] out”
the victims' home in Monroe Township on August 16 or 17,
2005. (Id. at 71:7-72:16.) On August 19, 2005, the
three men returned to the victims' home. (Id. at
122:24-124:25.) Jakubov stayed in the car while Petitioner
and Rodriguez walked towards the home wearing black masks
covering their faces. (Id. at 131:11-132:2.)
Petitioner carried a .38 caliber handgun and a knife, and
Rodriguez carried a 9-millimeter handgun. (Id.)
Rodriguez testified that Petitioner put a knife to Sam's
throat and Rodriguez put hand ties on Sam's hands.
(Id. at 125:9-126:15.) Rodriguez also testified that
Rodriguez took $7000 dollars from a table in the kitchen and
two watches from the kitchen. (Id. at 126:20-127:6.)
Rita came home during the robbery, but managed to escape to a
neighbor's house, and Sam was shot in the left side of
his abdomen. (Id. at 127:25-130:9) Rodriguez
testified that he was upstairs looking for more items to
steal when he heard the gunshot. (Id. at 127:7-16;
129:3-12.) Rodriguez further testified that he came
downstairs and saw Petitioner fleeing from the home.
testified that he left the home and was discovered by police
several blocks away. The officer conducted a pat down search,
which revealed two cell phones, two watches, $7000 in cash,
and a black mask in Rodriguez' back pocket. (Id.
at 132:17-133:13.) At police headquarters, Rodriguez agreed
to make a telephone call to Petitioner and Jakubov while the
police listened. In relevant part, Rodriguez asked Petitioner
to come back and get him, and informed them that he had $7000
and two expensive watches. (Id. at 134:25-136:5.)
contrast to Rodriguez' testimony, Petitioner testified at
trial that he was not a participant in the planning or
commission of the robbery. (ECF No. 13-3, Trial Tr. dated
9/28/2007 at 121-141.) He admitted that he had previously
traveled in Jakubov's car, and had traveled to Monroe in
Jakubov's vehicle in early August 2005 with Jakubov and
Rodriguez; however, he denied knowing the purpose of the trip
and denied that the two men asked Petitioner to return to the
area at a later date. (Id. at 126:17-129:3.)
Petitioner admitted that on the day after the armed robbery
and shooting, he took a taxi from New York City to a hotel in
Monroe Township to pick up Rodriguez in the hopes of
obtaining the proceeds from the sale of watches stolen from
the victim's home. (Id. at 129:16-133:6;
trial, Petitioner testified as follows on direct:
[Defense Counsel]: Did you come down to Monroe Township on
August 20th, 3 o'clock in the morning?
[Defendant]: Yes, ma'am.
Q. And how did you come to wind up coming down to Monroe
A. All right. Nathan [Jakubov] was with a girl that I hooked
him up with.
Q. What's that girl's name?
Q. Do you know her last name?
A. I don't recall her last name. I don't, ma'am,
no. Nathan was with Asia, the girl I hooked him up with. So,
Asia called me and said Nathan- [Assistant Prosecutor]:
Objection, hearsay. [Judge]: Sustained.
Q. Did you receive a telephone call that evening?
A. Yes, ma'am.
Q. And as a result of that telephone call-did the telephone
call come from Asia?
A. Yes, ma'am.
Q. As a result of that telephone call, did you do something?
A. Yes, ma'am.
Q. And what was that?
A. I went to, I went-I reported to Asia as a result of that
telephone call, ma'am.
Q. And then what happened?
A. Then when I reported to her, she was telling me what
happened with Nathan.
Q. Okay. And this was what time?
A. This is about midnight. Midnight, a little past midnight,
Q. And what did you do after that? What happened after that?
A. I got the property from Asia, Nathan's property, like
his chain, his wallet, his ...