United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE.
petitioner, John Fitzgerald, is a state prisoner currently
incarcerated at the New Jersey State Prison in Trenton, New
Jersey. He is proceeding pro se with a habeas petition
pursuant to 28 U.S.C. § 2254. Mr.
Fitzgerald was convicted by a jury in 2005 of
multiple drug offenses and is currently serving a sentence of
life imprisonment plus twenty years with a thirty-five year
period of parole ineligibility. He raises multiple claims in
this habeas petition, ranging from ineffective assistance of
counsel to errors regarding the admission of evidence and
incorrect jury instructions. For the following reasons, the
habeas petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
was acquitted of all the substantive CDS and weapons offenses
that were alleged to have occurred in Newark. He was
convicted of those CDS offenses that occurred in Elizabeth.
He was also convicted of certain leadership/conspiracy
offenses: first-degree being a leader of a narcotics
trafficking network, second-degree conspiracy to distribute
heroin or cocaine in a quantity of five ounces or greater,
and second-degree employing a juvenile in a drug distribution
following factual background is taken from the opinion of the
Superior Court of New Jersey, Appellate Division, dated June
30, 2008, which affirmed the convictions of Fitzgerald and
his three codefendants. (See State v. Fitzgerald,
No. A-1282-05T4, 2008 WL 2572617 ( N.J.Super.Ct.App.Div. June
30, 2008).) Because Fitzgerald's convictions were for,
inter alia, leadership of a trafficking network and
conspiracy, certain acts of codefendants are relevant to
Fitzgerald's conviction. For ease of reference, however,
portions of the Appellate Division's summary of the
evidence that specifically relate to the actions of John
Fitzgerald himself are emphasized in italics.
Defendants, Dawmeen, Dawshon and Dawud, are brothers; John is
their uncle. Much of the evidence presented by the State at
trial against these four defendants was obtained as a result
of wiretap applications and search warrants; the State also
presented the testimony of police officers and two
co-conspirators. This evidence permitted the jury to find
that defendants operated a large-scale drug distribution
In gathering this evidence, the police applied for and were
permitted in November 2002 to intercept calls to phone No.
assigned to Tamisha Fitzgerald, 17 Mravlag Manor, Elizabeth.
By way of a 281-page affidavit dated December 16, 2002, the
police obtained "no-knock" search warrants for
various locations in Elizabeth, Newark and Roselle.
A. The Search Warrants
The warrants were executed at ten different locations in
Elizabeth, Newark and Roselle at 6:00 a.m., on December 17,
2002. In considering the weight of the evidence amassed by
the State against defendants, it is helpful to review the
results obtained from the search warrants.
[1.] 82 Second Street, Apartment Two, Elizabeth. [FN
1] The police forced open the doors of this apartment and
chased Angel Aviles, Shariek Hiett and Duane Wells, to the
third floor. Wells "discarded some narcotics, "
later confirmed to be twenty bags of heroin, as he ran. All
were quickly apprehended. Kiahna Hall, Terry Williams,
Sherrod Britt, Cynthia Lewis, Leon Jenkins and Erick Faulk
were also found inside the apartment. When the police ordered
Aviles, Hiett and Wells to show their hands, Hiett placed six
"bricks" of heroin on the step next to him. [FN 2]
The heroin discarded by Wells was an "open brick."
[FN 1] The apartment building is within 1000 feet of two
elementary schools and within 500 feet of a public park.
[FN 2] A brick of heroin is fifty smaller bags, usually
wrapped tightly in newspaper or other type of paper.
After the individuals found in the apartment were
"transported for processing, " thirty-three
gold-capped vials [FN 3] containing cocaine were found on the
floor where Wells was seated; Wells was also found in
possession of $79 in cash. Aviles had six bags of heroin in
his right pants pocket and $126 in cash. The police found
five bricks of heroin wrapped in "lottery paper" in
a Knicks jacket, as well as a Nextel cell phone, charger,
binoculars, and two Motorola "walk about
walkie-talkies" in the kitchen. The cell phone recovered
was identified as one of the phones subject to the wiretap.
Its directory included private service numbers, which allowed
the use of the "push-to-talk" or a "direct
connect number" for Dawshon and Dawud; both of those
phone numbers were also subject to the wiretap. The directory
of the seized cell phone included telephone numbers for,
among others, co-conspirators Tyshon Jones, Charlotte Hall,
Marc Stuckey, Jamarl Maye, and Aviles.
[FN 3] A vial is a clear glass container used to package CDS,
At trial, Aviles and Britt testified for the State that the
CDS found in the apartment was "possessed with the
intent to distribute." Aviles identified the
"Rush" stamp on the heroin envelopes as the
"Fitzgerald brand heroin, " which was being sold at
the apartment that morning. Britt testified that the cocaine
belonged to Dawmeen.
In one of the bedrooms, the police found SI 87 in cash on top
of a dresser. On a coat rack in another bedroom, the police
found a "Phat Farm brand coat" containing five
bricks of heroin and another jacket containing 100 vials of
suspected cocaine. In a third bedroom, police found $464 in
cash in a dresser and a record book with the words
"record holla" on the cover; Aviles testified at
trial that this book contained "drug records in terms of
how much have [sic] been received and sold and money passed
back." A "red talk about radio walkie-talkie"
was found in a coat in the front bedroom. Aviles testified
that the walkie-talkies were used by the lookouts outside of
2. 84 Second Street, Apartment Four, Elizabeth.
The six-unit apartment building at 84 Second Street is
"connected physically" to the buildings at 80 and
82 Second Street. Once secured, the police found Amatullah
David and Jahmin Muse in the first bedroom and Marc Stuckey
in the second bedroom. The police seized $208 from Stuckey
and $195 from David.
In the room where Stuckey was found, the police found
"items that are consistent with packaging of drugs for
distributioh"-namely, two digital scales, two tape
dispensers, an empty box of sandwich bags, a box of small wax
or glassine envelopes, an ink pad and two boxes of rubber
bands.[FN 4] A small ceramic saucer and a small "utensil
type of tool" with a spoon on one end and point on the
other were found in the same location.
[FN 4] A detective testified at trial that, in the drug
trade, a single dose of heroin is first weighed using the
scale and then packaged by placing the drug in a wax
envelope, sealing it with tape, and stamping the envelope
with a "particular brand."
In the closet, the police found a pair of black Adidas tennis
shoes containing twenty-four wax envelopes of heroin, two
pink-capped vials of cocaine and another bag of cocaine. On
the floor of the closet were two other bags-one bag contained
fifty vials of cocaine with either pink or blue caps and two
wax envelopes of heroin, and the other bag contained twenty
bags of vial caps in various colors, twenty boxes of vials,
and some wax envelopes. A child's backpack, also found in
the closet, contained four boxes of empty wax envelopes (some
were stamped "Mo Money" in blue ink), two ink
stamps for "Mo Money" and "Da Take Over,
" three blue ink stamps, a metal strainer, a small glass
pestle and a bag with suspected cocaine. According to expert
testimony, the stamps are of the type used to designate the
dealer's "brand name."
The search also uncovered surveillance equipment, namely, a
small camera on the back porch pointed at the stairs and
connected to a monitor in the living room of the apartment.
In the kitchen, the police found "several hundred very
small empty plastic ziploc type bags." Walkie-talkies
were found in the first and third bedrooms.
3. 42G Mrvalag Manor, Elizabeth. The police found
Dawmeen, Laquanda Boone and a child under the age of one
inside this apartment. No. drugs were found.
In a basket of papers in one of the bedrooms, the police
found Dawmeen's birth certificate and a letter addressed
to "Doc" at 651 Elm Street in Roselle. Also found
was $39, 796 in cash in a dresser drawer and $16, 000 in cash
in a laundry basket next to the dresser. In the other
bedroom, the police found $2, 352 in cash in a purple bag
stashed between the mattress and springs of a baby crib. In
the living room, the police found a bag containing S31, 000
in cash that fell out when the couch was flipped over.
The police found a Nextel cell phone that had
"connections" to the phones subject to the wiretap
used by Dawshon and Dawmeen.
4. 636 Franklin Street, Second Floor, Elizabeth.
After forcibly entering this apartment, the police found
Dawud, Laverne Graves and Melissa Jeter inside. No. drugs or
drug paraphernalia were recovered.
Two cell phones were found. One of the phones was subject to
the wiretap and contained several "entries, "
including the push-to-talk numbers for Dawmeen, Dawshon and
The police also found mail addressed to Dawud at 636 Franklin
Street, second floor, Elizabeth, a letter addressed to
"Duke" and "Dukeman, " and a New Jersey
picture identification of Dawud. [FN 5] The police also found
a car title in the name of Aviles.
[FN 5] The parties stipulated that Dawud lived at this
address and was known as Duke or Dukeman.
Sergeant John Murphy testified that he found $6, 010 in cash
in a "red Madeline bag" at the foot of the bed in
the front bedroom of the first floor. Although Murphy
testified that he searched the first floor, the State sought
to prove that Murphy's recollection was incorrect and
that he actually searched the second floor, which was covered
by the search warrant. Another officer testified that he
recalled Murphy searching the second floor apartment with
him. And a detective testified that he received the $6, 010
in cash from Murphy and, although he did not know which floor
it was recovered from, he testified that Murphy searched the
second floor of the apartment where he (the detective) had
also been searching.
Paperwork, receipts, photographs and a checkbook were found
in a shoe box in a closet in the front bedroom. A receipt
showing that Dawud, listed as "Duke Fitzgerald, "
paid $2, 000 for the November 2002 rent on 82 Second Street,
apartment two, was also found in that box.
In the back bedroom, the police found S437 in cash, and a
pair of pants containing Dawud's New Jersey driver's
license, which listed 636 Franklin Street as his residence.
5. 307 Clinton Place, first floor front apartment,
This location is within 100 feet of an elementary school. The
police found the first-floor front left apartment empty; it
did not appear to be lived in "on a regular basis."
In the bedroom night stand, the police found two handguns: an
Intratec 9 (Tec-9) and a Glock .40 along with an extended
clip. The police also found a loaded .32 caliber handgun with
four extra rounds in a dresser, and a digital scale still in
its original packaging in a hall closet.
The Tec-9 was found to be operable, with a capacity of over
fifteen rounds. Aviles testified that both the .32 and .40
caliber weapons were kept at 82 Second Street, and at times
he carried the Tec-9 for protection. Britt testified that he
also carried the Tec-9 when he left the building, and the .40
caliber gun belonged to Muse.
6. 651 Elm Street, Roselle.
When the warrant was executed, Laverne Jackson, Jameica
Jackson, and three children, between the ages of six and
twelve years old, were found inside. Franklin Jackson, Sr.
was stopped by the police outside of this single-family
In the first floor bedroom where Jameica was sleeping, police
found $431 in cash. In the same room, they found a plastic
bag containing S6, 001 in cash, and two Gucci bags, each
containing $2, 400 and $2, 000 in cash. The police also found
a small unlocked safe containing $93, 515 in cash and a
plastic bag with $1, 810 in cash. The parties stipulated that
the police found several bags containing paperwork in a
bedroom closet, including letters and bills addressed to
Dawmeen at 651 Elm Street.
A green container, found in the master bedroom, contained
various bills in the name of Jackson, Sr., and a May 28, 2002
bail receipt signed by Jackson, Sr., for Britt. A large
locked safe was found in the master bedroom containing $445,
7. 414 Franklin Street, Elizabeth.
The police forcibly entered this single-family house. In a
bedroom where Theodore Wayne Patterson was located, the
police found a grinder with a "yellowish white"
residue, a scale, "a jar containing a white powdery
substance, " which was later determined to be baking
soda, thirty-eight bags of 100 gold caps each, and
twenty-eight boxes each of which contained 100 clear vials,
which are typically used to hold cocaine and heroin.
8. 271B Third Street, Elizabeth, In the rear
bedroom, the police found a shoe box on top of a pile of
clothes behind the door. Inside the box were various items,
including stamp pads, tooth brushes, loose rubber bands, a
phone card, soap with a white powdery substance on it, and a
box of glassine envelopes. In the same pile, the police found
a plastic bag with nineteen more boxes of glassine envelopes
and a bag with "a brown substance in it."
9. 307 Clinton Avenue, first floor rear apartment,
Tyshon Jones was found inside this apartment. In a hall
closet, police found a "Papaya bag" containing
rubber stamps, stamp ink pads, dust masks, a small digital
scale, and a ziploc bag containing smaller ziploc bags. Other
similar materials were found in other locations in the
In the pantry, the police found three plastic bags that
contained smaller bags with "a white rock-like
substance" in one bag, a brownish powder in two others,
and two dinner plates holding suspected drug residue. A
"Sprint phone document" bearing the name Tyshon
Jones was found in the kitchen hutch along with a black
plastic bag filled with "a powder." On the table,
police found a white plastic bag with four razor knives. Two
Western Union receipts in Jones's name were found above
In a dresser in the master bedroom, the police found nineteen
rubber stamps, several plastic spoons, ink pads, a bottle of
ink, playing cards, and a card bearing the name Angel Aviles.
Aviles testified that he left his plastic identification card
there "so we could use it to chop up the dope." A
Sprint cell phone was found on the floor near the window.
Also found was a cable television bill in name of Jones and a
Nextel cell phone bill in the name of Tamisha Fitzgerald.
In the second bedroom, police found sixty cardboard boxes
containing approximately 36, 000 glassine bags; some were
marked with a stamp and others were new and unused. The
closet also held boxes of scotch tape, tape dispensers and
"thousands" of rubber bands in boxes. A box with
162 glassine envelopes were stamped and contained a white
powdery substance. The closet also contained a folded white
paper with white powder in it, a bottle of quinine, and a
black "Dr. Jay's bag" containing various
packaging material and an identification card for Aviles.
In a hall closet, police found eight electric coffee
grinders, some of which appeared to have been used for
"grinding some type of white powder."
10. 607 South Park Street, second floor, Elizabeth.
After forcibly entering this single-family residence, the
police found Dawshon and Jewel Jones in one bedroom; Jewel
Jones's adult brother and two small children were found
in other bedrooms.
The police found two digital scales and seven boxes of
ammunition for .40, .45 and .38 caliber weapons in a utility
closet. In the master bedroom, police found Verizon cellular
telephone bills in Dawshon's name, utility bills in
Dawshon and Jewel Jones's name showing an address of 607
South Park Street, a $1, 698.16 Nextel phone bill in the name
of "Tamisha Fitzgeral[d], " a gas bill addressed to
Jewel Jones at 311 Franklin Street, a gas bill addressed to
Dawshon at 607-609 South Park Street, a December 1, 2002 rent
receipt with the name Terry Williams and an address of 82
Second Street, apartment two, Elizabeth, a money counting
machine, a letter from Tyshon Jones addressed to Dawud and
Dawshon, a bank card and a New Jersey identification card in
Da\vshon's name in the dresser, a "drug record"
notebook with dates and numbers, a bag of cash in the
dresser, a bag of cash in the entertainment center, and two
Nextel phones. The police also discovered "thousands of
dollars in cash" in plastic bags, a shoe box and dresser
drawers. In total, the apartment search uncovered $90, 728 in
One of the phones that was seized there was subject to the
wiretap. The "address portion of the phone" had
three "entries" for Dawmeen, including his home and
push-to-talk number. There were also entries for other
co-conspirators. A second phone that was found belonged to
Jewel Jones and had listings for Dawshon and Dawud at numbers
that were subject to the wiretap.
B. Aviles's Testimony
Along with the considerable evidence obtained through the
execution of search warrants and wiretaps, the State
presented at trial the testimony of Aviles, who testified
that he was "engaged in the active distribution of
narcotics" during the time of the investigation, i.e.,
November 19 to December 17, 2002.[FN 6] Aviles testified that
he and other "workers" were paid each week by