Price v. Warren

ALONZO PRICE, Petitioner, v. CHARLES WARREN, et al., Respondent.

Civ. No. 12-2238 (RBK)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

June 25, 2015

OPINION

ROBERT B. KUGLER, U.S.D.J.

I. INTRODUCTION

Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on multiple counts including kidnapping, burglary, robbery, terroristic threats and unlawful possession of a weapon amongst others. He is currently serving a life sentence with a forty-year parole disqualifier. Petitioner raises several claims in his habeas petition. For the following reasons, the habeas petition will be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

Following a reversal and remand resulting from plain error as to the questioning of a discharged juror, defendant Alonzo Price was convicted by a jury on two counts of first-degree kidnapping; two counts of second-degree burglary; one count of third-degree burglary; two counts of first degree robbery; two counts of third-degree terroristic threats; one count of third-degree possession of a weapon for an unlawful purposes; one count of fourth-degree unlawful possession of a weapon; one count of theft as a disorderly persons offense; and one count of third-degree theft. The court sentenced defendant as a persistent offender, to a discretionary extended term of life imprisonment with a twenty-five year paroledisqualifier on count six (robbery of Sadie Hamer). It also imposed a consecutive thirty-year term with a fifteen year parole disqualifier on count two (kidnapping of Mary Perez), and the following concurrent terms; thirty years with a fifteen-year parole disqualifier on count one (kidnapping of Hamer), twenty years with a ten-year parole disqualifier on count seven (armed robbery of Perez), ten years with a five-year parole disqualifier each on counts three and four (second-degree burglary of Hamer and Perez), and five years with a two-and-one-half-year parole disqualifier on count five (third-degree burglary of Perez) . . . .

The convictions arose in connection with two residential burglaries in Woodbine, which occurred one week apart, one involving Sadie Hamer on June 22, 2000, and the other involving Mary Perez on June 29, 2000. In both instances, the women were sleeping in their bedrooms when someone broke into their respective houses, threatened them, and bound and robbed them.

Hamer testified that a man straddled her, told her not to look at him, and put something flat, sharp and cold to the right side of her neck. She heard the sound of bedding being torn, and her assailant tied her hands behind her back and put a pillowcase over her head. He then put what Hamer thought to be a wood handle of a knife into her side and asked where she kept her money. Hamer heard the man open her drawers and search through her room for valuables. He then told Hamer he was leaving, and if she screamed, he would kill her. After she heard the front door open and close, Hamer shook the pillowcase off her head. She then went to her son's room and woke him, and called the police. The police untied Hamer when they arrived. The screen to the living room window had been cut, and Hamer reported that she was missing a watch and bracelet, each estimated to be worth $50, as well as $100 in cash.

Hamer could only see her assailant's silhouette as he initially came at her and she described him as "appear[ing] to be tall." When he had Hamer lie down, his cheeks touched hers, and she could not feel any facial hair. She also thought he had close, short hair and had a dark complexion.

Perez testified that her attacker directed her to turn onto her stomach and straddled her on the bed. He then placed a sharp object against her neck and told her not to move. She heard the sound of bedding being torn, and the assailant gagged her and bound her hands behind her back. Perez pleaded with her attacker just to take her money and jewelry, and informed him she hadmoney in her car. He said that if she was lying about the money in her car, he would come back and hurt her. The attacker left the house with Perez's car keys, which she had dropped on the living room carpet. She was able to dislodge the gag and called the police.

While resisting the attack, Perez felt her attacker's hair and face. She described him as "approximately five foot ten" with "African American" hair and informed the police he had been wearing a grey shirt and smelled of cigarettes. Perez also told them she believed she recognized her attacker's voice as that of defendant, who was a customer at the pharmacy where she worked, which was located in the building underneath her apartment. Perez reported that she was missing various pieces of jewelry and $200 taken from the wallet in her car.

A screen had been cut in Perez's living room and a cigarette butt, containing saliva that matched defendant's DNA, was located on the pharmacy roof outside Perez's window. The police also found a ladder placed against the pharmacy building, which the attacker had apparently used to climb onto the roof and into Perez's apartment. Detective Ulbrich testified that based on the space between the last rung of the ladder and the flat part of the roof, the attacker would have had to pull himself over the wet, wooden shingles onto the roof, which would have left dark-colored residue on his clothing. Pursuant to a search warrant of defendant's room, the detectives seized a damp gray t-shirt with staining on the front that appeared to be residue from the shingles. Defendant's jean shorts also contained similar staining, and in the pocket were some strands of "purplish" carpeting that were the same color as the carpet in Perez's living room.

Detective William Scull testified as follows regarding the similarities between the two crimes:

With respect to date and time, both, both of these crimes were in the early-morning hours on a Thursday. They happened to be on subsequent Thursdays. One was approximately 2:20 and one was around 3:00 a.m. . . . And the Thursday happens to be the day after Alonzo Price's payday which he indicates on payday, on Wednesdays, he gets a bottle and gets drunk. . . . They were both within a close proximity to each other in Woodbine which also happens to be in close proximity to the defendant's apartment.

They were both locations that were primarily housed by a woman . . . without the typical male/man/husband figure in the house as a . . . known thing, I believe, throughout the Town of Woodbine. Woodbine's very small, and people know each other. . . . Both of them are known to primarily have residing with them a minor child.

. . . .

[B]oth crimes were committed via entry of a, screen-through a window. Both of them happened to have screen windows on the outside. Both of these screen windows happened to be cut in a very similar fashion, as they were cut right along the bottom of the screen.

I have investigated other burglaries and such throughout my, my time, and I believe in my opinion from my experience, that it's more common that if a screen's taken out, either the frame's ripped out or the screen's ripped out. Both of these were cut horizontally along the bottom. Both of them had the screens lifted up, not taken from their track, and both of them had then subsequent entry in through the window.

And both of these crimes had exit through the primary entrance door or exit door. Both of them . . . were residences that had the television on. . . .

The detective further testified that normally, to avoid confrontation, burglars do not wake sleeping victims. In both instances here, however, the perpetrator initiated contact with the victim. Detective Scull also noticed there were other items available to take, such as Perez's car which the attacker had the keys to, but instead, in both instances, he took only money and jewelry.

(Dkt. No. 9-8 at p. 2-3.)

After petitioner was convicted and sentenced at his retrial, he appealed to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed except for reversinga conviction on one count and remanding for resentencing on an issue not relevant to this Opinion. The New Jersey Supreme Court denied certification on March 20, 2007. (See Dkt. No. 9-13.)

Petitioner subsequently filed a petition for post-conviction relief ("PCR") in the Superior Court of New Jersey, Cape May County in April, 2007. That court denied the PCR petition on January 14, 2009. (See Dkt. No. 9-18.) The Appellate Division affirmed that denial on March 8, 2011. (See Dkt. No. 9-22.) The New Jersey Supreme Court denied certification on the PCR petition on July 22, 2011. (See Dkt. No. 9-25.)

Petitioner then initiated this federal proceeding by filing a petition for writ of habeas corpus in April, 2012. Petitioner was then given the requisite notice pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). He informed the Court that he wanted his petition to be ruled upon as filed. (See Dkt. Nos. 2 & 3.) The respondent filed his response on June 20, 2012. Petitioner then filed his original traverse in September, 2012. Subsequently, petitioner has filed numerous updates and amendments to his traverse. He has also filed a motion to compel.

III. HABEAS CORPUS LEGAL STANDARD

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d at 415 n.1 (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings...