United States District Court, D. New Jersey
BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE.
this Court is the petition for a Writ of Habeas Corpus of
Petitioner Francis Mitchell (“Petitioner”)
brought pursuant to 28 U.S.C. § 2254, (ECF No. 1) and an
application to proceed in forma pauperis. (ECF Nos.
5, 14.) Following an order to answer, Respondents filed a
response to the petition (ECF No. 9-1.) For the reasons set
forth below, T Petitioner's application to proceed in
forma pauperis is GRANTED,
Petitioner's habeas petition is DENIED,
and Petitioner is DENIED a certificate of
opinion affirming the convictions and sentences of
Petitioner, the Superior Court of New Jersey, Appellate
Division, provided the following summary of the factual
background of Petitioner's trial:
The indictment arose out of two robberies of a Bank of
America branch office in Franklin Township, the first on
August 3, 2006, and the second on September 1, 2006.
In the first robbery, at about 11:00 a.m. on August 3, 2006,
an African-American male parked a black Hyundai Elantra at a
gas station next to the bank. The man walked up to a teller
and handed her a check and a note demanding money and
informing her that he had a gun. The teller observed what she
believed to be a gun in the man's left hand, wrapped in a
black plastic bag. The teller gave the man more than $3000 in
cash. After he left, the teller reported the robbery to her
supervisors, who locked the bank and called the police.
The police arrived and reviewed the bank's video
surveillance footage with the teller. She described the
robber as an African-American male, about five feet, four
inches or five feet, five inches tall, wearing eyeglasses and
a cap, unshaven, and “scruffy looking.”
Thereafter, the police reviewed a surveillance video from the
gas station next to the bank, which showed the Hyundai
pulling into the service station shortly before the time of
the robbery and a man getting out of the car and walking
toward the bank. About seven minutes later in that video, it
appeared that the same individual returned from the direction
of the bank. While on his way back to the Hyundai, the man
dropped-and then picked up-what the police believed to be
money. Then he got into the Hyundai and drove off. The
license plate on the Hyundai was not discernable, but the
video did reveal that the vehicle had front end damage.
The second robbery occurred at about 10:15 a.m. on September
1, 2006, less than a month after the first robbery. A man
entered the same branch of the bank wearing a cap and
carrying a bag. He was speaking on a cell phone. One of the
bank's employees asked the man if he needed any help. The
man refused her assistance and left.
Five minutes later, the same man reentered the bank. This
time, another female teller asked the man if he needed
assistance. The man asked the teller if she was free. She
stated that she was, and he approached her teller station. As
he did so, the man handed the teller a handwritten note. He
demanded that she read the note and comply with its
instructions. According to the teller, the note instructed
her to put all her cash from her drawer into a black plastic
shopping bag that the man handed to her. The teller complied,
placing approximately $3000 into the bag. The man grabbed the
bag and left. The teller then pressed the panic button to
report the robbery.
The teller in the second robbery described the robber as
about five feet, six inches or five feet, seven inches,
African-American, and having a “good build.” She
recalled that he had been wearing a black coat, jeans, and a
baseball cap that had a shiny logo on its flap.
A police detective recovered the note, as well as a business
check, that the robber had presented to the teller. The check
was made out to a “Chris Taylor, ” in the amount
of $347. The detective was able to read defendant's name
under a portion of the upper left-hand corner of the check
that had been scratched out with ink. With the aid of a
backlight, the detective was able to make out a street
address on the check for certain premises located at Route 27
The parties stipulated that defendant owned a Chicken Holiday
restaurant located at that Route 27 address. The parties also
stipulated that the account number on the check matched a
closed bank account that was formerly held by defendant.
Through motor vehicle records, the detective ascertained that
defendant had a Hyundai Elantra registered under his name,
and that the vehicle matched the description of the vehicle
observed at the gas station in the August 3, 2006 robbery.
Later that day, investigators assembled a photo array of
several African-American males and showed the array to the
second teller at her residence. From the array, the teller
identified defendant as the robber.
. . . .
A grand jury subsequently issued a two-count indictment,
charging defendant in Count One with first-degree robbery of
the bank on August 3, 2006, and charging him in Count Two
with first-degree robbery of that same bank on September 1,
2006. Before trial, defendant moved to sever the two counts
of the indictment. The trial court denied the motion,
concluding that severance was not warranted, particularly in
light of the factual similarities between the two robberies,
and the likelihood that, even if the trials were severed,
under N.J.R.E. 404(b) evidence of one robbery would
be admissible at the trial of the other robbery. Prior to
trial, the trial court granted the State's motion to
amend Count Two to a downgraded charge of second-degree,
rather than first-degree, robbery.
During the three days of trial testimony in September 2008,
the State presented testimony from four police detectives who
investigated the robberies and from the two police officers
who presented the photo array to the second teller. The State
called the operator of the video equipment at the gas
station, who verified that the equipment was in working order
on August 3, 2006. The State also presented an auto
technician from the gas station, who attested that the
vehicle shown in the video was, in fact, a Hyundai Elantra
from a model year between 2001 and 2005.
The State presented testimony from each of the two tellers
who had given the robber the money he demanded. The first
teller was unable to make an in-court identification of the
robber, noting that, at the time of trial, defendant, unlike
her recollection of the robber, was clean-shaven. The first
teller also explained that she had been staring at what
appeared to be a plastic-covered gun during the robbery. The
second teller, however, positively identified defendant in
court as the perpetrator of the September 1, 2006 robbery.
. . . .
[T]he jury viewed the surveillance video from the gas
station, as well as videos filmed from surveillance cameras
within the bank from both robberies.
After the State rested its case, defendant moved for judgment
of acquittal on the first count of the indictment, which the
Defendant was the sole witness in his own case. He denied
involvement in either of the robberies, asserting that other
persons had access to his Hyundai Elantra. Defendant
acknowledged on cross-examination that the Hyundai Elantra
shown in the gas station video was indeed his car, and also
that the check used in the second robbery was in fact his own
On the second day of deliberations, the jury returned a
guilty verdict on both counts of the indictment. Thereafter,
the trial court sentenced defendant to a fifteen-year term on
the count of first-degree robbery and a consecutive
seven-year term on the second-degree robbery. Both sentences
were made subject to the parole ineligibility periods
prescribed by the No. Early Release Act, (“NERA”)
State v. Mitchell, Docket No. A-4151-08T2, 2010 WL
5376365, at *1-3 ( N.J.Super.Ct.App.Div. Nov. 9, 2010).
appealed his conviction and sentence. The Appellate Division
affirmed his conviction on November 9, 2010, correcting a
clerical error in Petitioner's period of parole
ineligibility. Id. at *10. The New Jersey
Supreme Court denied certification on April 14, 2011. See
State v. Mitchell, 205 N.J. 519 (2011). In 2011,
Petitioner filed a post-conviction relief (“PCR”)
petition in the Superior Court of New Jersey, Somerset
County, (ECF No. 9-6), and an amended PCR petition in 2012.
(ECF No. 9-7.) The Superior Court denied the PCR petition on
May 30, 2012. (ECF No. 9-8.) Petitioner appealed, and on
September 22, 2014, the Appellate Division affirmed the
denial of the PCR petition. (See ECF No. 9-9.)
Petitioner then filed his habeas petition with this Court on
which was signed on September 23, 2014.
petition raises four claims:
1. It was an abuse of discretion by the motion judge to deny
defendants motion to sever the two counts for separate trial;
2. It was error for the trial judge not to make further
inquiry of a juror who exited the jury room in a highly
3. The prosecutor's invitation extended to defendant
during summation to stand next to the video tape picture of
the robber was improper and denied defendant a fair trial;
4. The excessive sentence and the imposition of consecutive
sentences, were both an abuse of discretion by the trial
(ECF No. 1.)
was ordered to file an answer to the habeas petition. (ECF
No. 2.) Respondent argues the claims have not been exhausted,
they are procedurally defaulted, do not raise ...