Cody v. Sweeney

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: HON. BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE
• Docket Number: Civil Action 20-20387 (BRM)
• Decision Date: 17 December 2025
• Citation: Cody v. Sweeney, Civil Action 20-20387 (BRM) (D. N.J. Dec 17, 2025)
• Parties: VICTOR CODY, Petitioner, v. CINDY SWEENEY, Respondent.

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VICTOR CODY, Petitioner, v. CINDY SWEENEY, Respondent.

Civil Action No. 20-20387 (BRM)

United States District Court, D. New Jersey

December 17, 2025

NOT FOR PUBLICATION

OPINION

HON BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE

Before the Court is Petitioner Victor Cody's (“Petitioner”) amended petition for a writ of habeas corpus (“Amended Petition”) brought pursuant to 28 U.S.C. § 2254. (ECF No. 10.) Following an order to answer (ECF No. 11), Respondent Cindy Sweeney (“Respondent”) filed a response to the petition (ECF No. 16) and Petitioner did not file a reply. Having reviewed and considered, for the reasons set forth below and for good cause having been shown, Petitioner's Amended Petition is DENIED, and no certificate of appealability shall issue.

I. Background

The New Jersey Superior Court, Appellate Division provided the following factual summary on direct appeal:^[1]

On April 20, 2012, Surjit Singh was working as an attendant in a service station at the corner of Frelinghuysen and Meeker Avenues in Newark. As Singh began to pump fuel into a truck, two men, later identified by Singh as Joseph and Victor Cody [(“Petitioner”)], beat and robbed him. [Petitioner] grabbed Singh from behind and took money from his pocket, while Joseph hit Singh in the face with a metal object, fracturing his left cheek. Singh was able to see both men as they fled.

A surveillance video shows Singh walking toward the truck before the attack at 12:21 p.m. Singh is seen walking around the front of the truck to the driver's side, out of camera range. Less than one minute later, two men can be seen walking around the front of the truck. One of the men wore a hooded coat while the other wore a shirt with a distinctive cross pattern on the back, similar to one recovered after the robbery.

Lorraine Bellamy was at the station and witnessed the robbery, but could not identify anyone. Tashon Brown, an off-duty firefighter, was in the station's convenience store at the time of the robbery. Bellamy told Brown that a man had been robbed and the attackers fled through the park across the street. She described one of the robbers as wearing a dark blue jacket and the other as wearing a white shirt or sweatshirt. Bellamy also told Brown that one of the men had a “low” haircut while the other had longer braids.

Brown told Bellamy he was “going to get them people” and drove out of the station in the direction that Bellamy saw the men fleeing. Brown radioed a report of the robbery and a description of the suspects he had been given to his fire department dispatch. As Brown approached Dayton Street, he spotted two men fitting the description of the robbers in the park who were hastily removing some of their clothing. Brown informed dispatch as he followed the men out of the park and observed them enter a gold Nissan Maxima.

Brown followed the Nissan southwest on Dayton to Foster Street and then north on Frelinghuysen, while simultaneously relaying the license plate number and location of the Nissan to his dispatch. Brown's information was, in turn, relayed to Newark police.

As Brown was following the Nissan, Newark Police Officer Jimmy Rios and his partner Exmil Gonzalez received the report of the robbery and spotted the Nissan. Rios followed the Nissan and initiated a traffic stop. Brown continued to follow the Nissan until it was stopped by police; he then returned to the gas station.

The officers identified Arthur Armstrong as the driver of the Nissan. Joseph Cody was sitting in the front passenger seat, while [Petitioner] was in the back seat. Rios told the occupants of the car to keep their hands visible. Armstrong and Joseph complied, but [Petitioner] kept his hands near his waistband. After [Petitioner] failed to comply with a second command to show his hands, Rios drew his gun and again instructed [Petitioner] to show his hands. [Petitioner] complied and, after he and the occupants were removed from the vehicle, [Petitioner] was patted down and a bundle of money totaling $1,319 was found in his waistband. A black hoodie and a grey shirt with a distinctive cross design were recovered from the vehicle.

All three men were arrested and taken in separate cars back to the gas station to see if Singh could identify them. Before Singh saw [Petitioner] and Joseph, Rios told Singh that the men he would see may not have been involved in the crime and he was under no pressure to identify anyone. Singh identified both defendants as the ones who robbed and beat him. Specifically, Singh said [Petitioner] was the one who held him and Joseph struck him in the eye with a metal object. The show-up was partially recorded on the surveillance camera. Although there is no audio, the video contains a time reference which indicates that the show up began at 12:36 p.m., fifteen minutes after the robbery. Singh testified at trial that, when he identified defendants on April 20, 2012, he was one hundred percent sure that they were the people who robbed him....

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The judge also conducted a brief pretrial hearing to determine the admissibility of the 911 call, and fire department dispatch and police recordings of the incident. The State offered the recordings as nontestimonial business recordings and present sense impressions. The judge admitted portions of the recordings.

The 911 recording was admitted because the statements were nontestimonial and meant to resolve an emergency, the speaker was referring to events as they were happening, and the “call was plainly a call for help against a bona fide physical threat.” The judge also found that portions of the 911 recording were admissible under the present sense impression and the excited utterance exceptions to the hearsay rule.

The segment of the fire department dispatch recording that was admitted was determined to be non-testimonial and fell under the present sense impression hearsay exception.

State v. Cody, No. A-5005-13T2, 2016 WL 3369531, at *2-4 (N.J.Super.Ct.App.Div. June 20, 2016) (footnotes omitted). On collateral appeal, the Superior Court noted that:

After eleven hours of deliberations, the jury reported they were at an impasse. The trial court, who was also the PCR court, instructed the jury to continue its deliberations, gave the instruction approved in State v. Czachor, 82 N.J. 392 (1980), and provided a written copy of the jury charge over the objection of defense counsel. The jury also heard readbacks of Singh and Lorraine Bellamy's testimony.

State v. Cody, No. A-0754-18T2, 2020 WL 2601974, at *1 (N.J.Super.Ct.App.Div. May 22, 2020).

Petitioner was convicted of second-degree conspiracy to commit robbery, N.J.S.A. § 2C:5-2 and N.J.S.A. § 2C:15-1(b); first-degree robbery, N.J.S.A. § 2C:15-1; fourth-degree unlawful possession of a weapon, N.J.S.A. § 2C:39-5(d); and third-degree possession of a weapon with an unlawful purpose, N.J.S.A. § 2C:39-4(d). Cody, 2016 WL 3369531, at *1; (ECF No. 18-2 at 2.). The trial court sentenced Petitioner to a term of twenty-five years imprisonment with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. § 2C:43-7.2, and five years of parole supervision upon release. Id; (ECF No. 18-2 at 2.). The judge also imposed a discretionary extended term for persistent offenders under N.J.S.A. 2C:43-7.1(b). Id; (ECF No. 18-2 at 2.).

Petitioner filed a Notice of Appeal with the Appellate Division. On June 20, 2016, after consolidating Petitioner's and his brother, Joseph Cody's, appeals, the Appellate Division affirmed Petitioner's conviction and sentence. Cody, 2016 WL 3369531, at *13; (ECF No. 18-5.). The New Jersey Supreme Court denied Petitioner's petition for certification. State v. Cody, 228 N.J. 503 (2017).

Petitioner filed a post-conviction relief (“PCR”) petition. (ECF No. 18-6.) On June 1, 2018, the PCR court denied his petition. (ECF No. 18-7.) Petitioner appealed, and the Appellate Division affirmed the denial. State v. Cody, No. A-0756-18T2, 2020 WL 2601977 (N.J.Super.Ct.App.Div. May 22, 2020); (ECF No. 18-13.). The New Jersey Supreme Court denied certification in July 2021. State v. Cody, 248 N.J. 215 (2021).

Petitioner filed his initial habeas petition in December 2020. (ECF No. 1.) In May 2021, Petitioner filed an amended habeas petition and a motion to stay. (ECF Nos. 5, 6.) In July 2021, the Honorable John Michael Vazquez, U.S.D.J. (ret.) granted Petitioner's motion to stay. (ECF No. 7.) In August 2021, the stay was lifted (ECF No. 9) and Petitioner filed the instant Amended Petition (ECF No. 10). Respondent filed an answer. (ECF No. 16.) In March 2023, Petitioner withdrew his unexhausted habeas claim (ground ten) and requested to proceed on the merits of the remaining claims. (ECF No. 22.) Petitioner did not file a reply. On September 14, 2023, this matter was reassigned to the undersigned for all further proceeding. (ECF No. 24.)

II. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, provides that the district court “shall entertain an application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Habeas petitioners bear the burden of establishing their entitlement to relief for each claim presented in a petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). District courts are required to give great deference to the determinations of the state trial and appellate courts. Renico v. Lett, 559 U.S. 766, 772-73 (2010).

Where a claim has been adjudicated on the merits by the state courts the district court shall...