Black v. Nogan

JONATHAN BLACK, Petitioner, v. PATRICK NOGAN and THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.

Civil Action No. 16-8498(MCA)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

December 5, 2019

NOT FOR PUBLICATION

OPINION

MADELINE COX ARLEO, District Judge

I. INTRODUCTION

This matter has been opened to the Court by the pro se Petition pursuant to 28 U.S.C. § 2254 (ECF No. 1 ("Petition")) of Jonathan Black ("Petitioner"). Petitioner purports to present his habeas claims as nine grounds in the Petition. However, he in fact asserts fifteen claims, since Ground Five asserts eight separate claims. (ECF No. 1-2 at 12-33.) For the reasons explained below, the Court will deny all fifteen of the Petition's claims with prejudice and will deny a certificate of appealability.

II. FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Factual Background

Petitioner's convictions arose from several armed robberies and related crimes in April 2004. This Court briefly reviews their facts as pertinent to this Opinion. See 28 U.S.C. § 2254(e)(1).¹

1. 7-Eleven Robbery: April 20, 2004, 12:22 a.m.

On April 20, 2004 at approximately 12:22 a.m., two masked black males armed with handguns robbed a 7-Eleven store in Union, New Jersey ("7-Eleven Robbery"). One robber, the taller and skinnier of the two, wore a short-sleeve white t-shirt, long pants, work boots, and a mask. The shorter robber had "long black braids" and was wearing work boots, a black jacket, short blue jeans, and gloves. The men stole the money from two cash registers and left the store. The store security cameras recorded the 7-Eleven Robbery but provided no identifying information. State v. Black, 2009 WL 4981192, at *1 (N.J. Super. Ct. App. Div. Dec. 24, 2009) ("Black 2009 II").

2. Quick Chek Robbery: April 20, 2004, 1:00 a.m.

At around 1:00 a.m. on April 20, 2004 -- approximately thirtyminutes after the 7-Eleven Robbery -- two armed, masked, black males entered a Quick Chek store in Union. The skinnier robber wore blue jean shorts, a white t-shirt, Timberland boots, gloves, and a black face mask. He took the store's manager behind the counter, had her take all the money out of the cash register, and placed the cash in a bag ("Quick Chek Robbery"). Black 2009 II at *1. The other robber was light-skinned, had shoulder-length dreadlocks, and was "more muscular" than the other. He wore a black hooded sweatshirt, blue jean shorts, brown Timberland boots, a black mask, and no gloves. While the manager attempted to open the register, the muscular robber stood on the other side of the counter, threatening to kill her if she did not "hurry up." He was carrying a larger gun than the other robber. Ibid.

During the robbery, customer Rodrigo Erazo entered the store. The muscular robber pointed his gun at Erazo and told him to get on the floor or he would be killed. Ibid. Police Sergeant Harry Capko responded to the scene and found a shell casing behind the counter. Black 2009 II at *2.

3. Foot Locker Robbery: April 26, 2004

On April 26, 2004 -- six days after the 7-Eleven and Quick Chek Robberies -- an armed robbery occurred at a Foot Locker store in Union ("Foot Locker Robbery"). Black 2009 at *1.

Following the Foot Locker Robbery, police office Pietro DiGena took a report from the store's manager ("the Manager"), whostated that a customer ("the Customer") tried to enter the store during the robbery but was turned away by the suspects. (Black 2009 at *1; ECF No. 8-17 at 5-6.) The Customer told the Manager that, upon leaving the location, he had noticed "a 1995 Mitsubishi Galant, silver, with gray tinted windows, and damage to the right front fender and [a broken right front] headlight" was partially blocking the store's exit ("the Galant"). (Black 2009 at *1; ECF No. 8-17 at 5-6.) Other witnesses reported that one robber wore an "olive green military [camouflage] jacket" and the other wore "a black hooded sweatshirt." (Black 2009 at *1; ECF No. 1-2 at 41-42.) The Manager told Officer DiGena that the perpetrators were both armed with handguns. (ECF No. 8-17 at 8.)

4. The Vehicle Stop: April 28, 2004

Roughly four hours after the Manager's report to police, Officer DiGena and Officer Barry Cohen ("the Officers") were on patrol in a marked car on April 28, 2004. At approximately 12:23 a.m., they observed a silver 1995 Mitsubishi Galant with damage to the front, right fender and a broken, right headlight. These damages matched the Customer's description of the Foot Locker Robbery perpetrators' vehicle. The damaged vehicle was driving west on Morris Avenue near the Foot Locker store. Black 2009 at *1. Based on its broken headlight, the officers followed and then stopped the silver Mitsubishi ("The Stopped Vehicle"). (ECF No. 8-17 at 7.) The Officers immediately requested backup. (Ibid.) Theyinstructed the car's driver and three passengers ("the Occupants") to roll down their windows "to see better into the car." (ECF No. 8-17 at 6-7; Black 2009 II at *2.) The Occupants complied. (ECF No. 8-17 at 7.) While waiting for backup to arrive, the Officers saw that "the front passengers were passing something back to the rear seat passengers," which suggested "they were trying to conceal something." Police instructed the Occupants to stop their movements, with which they complied only after several requests by police. (Black 2009 at *1; ECF No. 8-17 at 6-8.) Sergeant Frank Marano soon arrived at the scene to assist Officers DiGena and Coleman. (ECF No. 8-17 at 28-29.)

As Sergeant Marano and Officer DiGena approached The Stopped Vehicle, DiGena noticed that the Occupants wore clothes that matched the Manager's description. (Black 2009 at *1; ECF No. 8-17 at 10 and 28.)² As the officers got closer to The Stopped Vehicle, they used flashlights to illuminate its interior. They saw facemasks and gloves on its floor. (ECF No. 8-17 at 10 and 32.) Upon DiGena's questioning, Petitioner denied passing anything to the other Occupants. (Black 2009 at *1; ECF No. 8-17 at 10-11.)

The Officers ordered the Occupants to exit The Stopped Vehicle one-by-one and to sit on the curb. (Black 2009 at *1; ECF No. 8-17 at 13, 17-19.) The police patted down the Occupants for weapons. (Black 2009 at *1; ECF No. 8-17 at 11.)

Sergeant Marano saw that "the [rear passenger side] seat cushion was pulled away from the side of the vehicle," which suggested to him that "something may have been hidden." (Black 2009 at *1; ECF No. 8-17 at 12 and 23.) When he pulled on the cushion, "it popped out." (Black 2009 at *2; ECF No. 8-17 at 10-11 and 34-36.) As it did so, Marano saw the handle of a Colt handgun with the hammer back and its safety removed. Given the risk the weapon might discharge, Marano went around the car to retrieve the gun through the trunk. (Ibid.)

To retrieve the Colt, Marano had to move a "speaker box" in the trunk. There he found a second semiautomatic handgun on the driver's side in a location identical to that of the first gun. (ECF No. 8-17 at 36.) He also found: a knife with a six-inch blade in the pocket of the driver's door; and Petitioner's high school identification card under the tire in the wheel well. (Ibid.)

The police arrested all four Occupants and took them separately to police headquarters. (ECF No. 8-17 at 13.) The police determined that Petitioner was the driver and wore a black hooded sweatshirt. The front-seat passenger, later identified as Kevin Drake, wore a green military jacket. The driver's side rear passenger was identified as Ernest Oliver. The passenger side rear passenger was identified as Tariq McLamb. (ECF No. 1-2 at 43.)

McLamb, Oliver, and Black gave statements to the police about the weapons in The Stopped Vehicle as well as information about various other robberies. (Black 2009 at *2; ECF No. 8-17 at 12-13 and 24.) Police advised all defendants of their Miranda rights before they provided their statements, and all defendants waived those rights in writing. (ECF No. 1-2 at 43.) Petitioner told the officers at the scene that he borrowed The Stopped Vehicle from a friend's mother to go to the movies and to get "prom stuff." Ibid.

Sergeant Michael Sanford, who was in charge of Union's police ballistics lab, testified at trial that he tested the two guns seized from The Stopped Vehicle ("the Weapons Evidence"). (ECF No. 8-26 at 18 and 30-34.) The weapons test revealed that one of the seized guns had been used in at a gas station shooting on April 12, 2004.³ (Black 2009 at *2; ECF No. 8-17 at 37.) Sandford found(Black 2009 at *2; ECF No. 8-17 at 37.) Sandford found both seized weapons were fully operable. (ECF No. 8-17 at 40-41.) A casing test-fired from the Colt .380 automatic handgun matched the .380 casing recovered from the scene of the Quick Chek robbery. (Id. at 34-35.)

5. Petitioner's Confession

After Petitioner's April 28 arrest, police transported him to Union Township Jail. According to Petitioner, Detective Gregory Rossi told him that "the first one [who] talks, walks." Black 2009 II at *3. Approximately fifteen hours after police arrested Petitioner, they brought him into an interrogation room. OfficerChristopher Baird verbally read Petitioner his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and gave him a standard Miranda waiver form. Petitioner signed the form and agreed to speak to police. Black 2009 II at *3. During the approximately two hour interrogation, Petitioner was calm and cooperative throughout the interview. Petitioner read and signed his statement ("Confession"), initialing each page at the bottom. Ibid. In his Confession, Petitioner admitted to participation in the 7-Eleven Robbery, Quick Chek Robbery, Foot Locker Robbery, Gas Station Shooting, a Chinese restaurant armed robbery, and a Kids-R-Us armed robbery. He stated that, when pulled over, the Occupants were contemplating an additional robbery. Black 2009 at *3 n. 1.

6. Trial On Charges Related To The 7-Eleven And Quick Chek Robberies

In June and July of 2006, Petitioner stood trial...