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Maloney v. Nogan

United States District Court, D. New Jersey

April 19, 2017

PATRICK NOGAN, et al., Respondents.


          FREDA L. WOLFSON, U.S.D.J.


         This 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.


         The 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 robbery.[1]

         Rodriguez 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. (Id.)

         Rodriguez 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.[2] (Id. at 134:25-136:5.)

         In 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; 140:13-141:4.)

         At 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 Township?
A. All right. Nathan [Jakubov] was with a girl that I hooked him up with.
Q. What's that girl's name?
A. Asia.
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, yeah.
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 ...

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