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Mitchell v. Nogan

United States District Court, D. New Jersey

May 11, 2018

PATRICK NOGAN, et al., Respondents.



         Before 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 appealability.

         I. Background

         In its 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 in Somerset.
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 court denied.
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 check.
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”) N.J.S.A. 2C:43-7.2.

State v. Mitchell, Docket No. A-4151-08T2, 2010 WL 5376365, at *1-3 ( N.J.Super.Ct.App.Div. Nov. 9, 2010).

         Petitioner 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.[1] 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.

         The petition raises four claims:[2]

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 emotional state;
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 judge.

(ECF No. 1.)

         Respondent 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 ...

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