Greene v. Chetirkin

• Decision Date: 08 March 2023
• Docket Number: Civil Action 22-150 (SDW)
• Parties: RONALD B. GREENE, Petitioner, v. ROBERT CHETIRKIN et al., Respondents.
• Court: U.S. District Court — District of New Jersey

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RONALD B. GREENE, Petitioner, v. ROBERT CHETIRKIN et al., Respondents.

Civil Action No. 22-150 (SDW)

United States District Court, D. New Jersey

March 8, 2023

OPINION

HON SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE

Presently before the Court is the petition for writ of habeas corpus under 28 U.S.C. § 2254 by Petitioner Ronald B. Greene, a New Jersey state prisoner who is challenging his 2014 convictions for conspiracy to distribute heroin, robbery, and related offenses. (ECF No. 1). Respondents filed an answer to the petition for writ of habeas corpus. (ECF No. 4). Petitioner did not file a reply brief. For the following reasons, Petitioner's habeas petition is denied, and Petitioner is denied a certificate of appealability.

I. PROCEDURAL HISTORY

On February 9, 2012, a Bergen County Grand Jury returned Indictment Number 12-0200302-1, charging Petitioner with the following: Count 1, second-degree conspiracy to distribute a controlled dangerous substance (“CDS”), heroin (first-degree), in violation of N.J. Stat. Ann. 2C:35-5a(1) and 5(b)(1) and N.J. Stat. Ann. 2C:5-2; Count 2 second-degree conspiracy to commit armed robbery (first-degree), in violation of N.J. Stat. Ann. 2C:5-2, N.J. Stat. Ann. 2C: 15-1; Count 3, third-degree distribution of a controlled dangerous substance, heroin, to an undercover agent, in violation of N.J. Stat. Ann. 2C:35-5a(1) and 2C:35-5b(3); Count 4, second degree conspiracy to distribute CDS, heroin (first-degree), in violation of N.J. Stat. Ann. 2C:35-5a(1) and 5b(1); Count 5, third-degree possession with intent to distribute imitation heroin under circumstances which would lead a reasonable person to believe the substance was CDS or CDS analog, in violation of N.J. Stat. Ann. 2C:35-11; Count 6, first-degree robbery; Counts 7 and 16, second-degree possession of a weapon for unlawful purpose, in violation of N.J. Stat. Ann. 2C:39-4a; Counts 8 and 17, second-degree possession of a handgun without the requisite permit, in violation of N.J. Stat. Ann. 2C:39-5b and 2C:58-4; Count 9, fourth-degree possession of a defaced firearm, in violation of N.J. Stat. Ann. 2C:39-3d; Counts 10 and 18, second-degree possession of a firearm during a drug offense, in violation of N.J. Stat. Ann. 2C:35-5 and 2C:39-4. l(a); Count 11, first-degree attempted murder, in violation of N.J. Stat. Ann. 2C:11-3 and 2C:5-1; Counts 12 and 15, fourth-degree resisting arrest, in violation of N.J. Stat. Ann. 2C:29-2a(2); Count 13, third-degree hindering apprehension, in violation of N.J. Stat. Ann. 2C:29-3b(1); Count 14, fourth-degree aggravated assault, in violation of N.J. Stat. Ann. 2C: 12-1b(4); Count 19, second-degree resisting arrest, in violation of N.J. Stat. Ann. 2C:29-2b; Count 20, third-degree possession CDS (cocaine), in violation of N.J. Stat. Ann. 2C:3510a(1); Counts 21, 22, 23, and 24, second-degree certain persons not to have weapons in violation of N.J. Stat. Ann. 2C:39-7b.

After a jury trial before the Honorable Edward A. Jerejian, J.S.C., held on November 7, 2013 through December 4, 2013, Petitioner was acquitted of attempted murder and resisting arrest. He was convicted on all other counts. (ECF No. 4-22 at 18-22). The following day, Petitioner was tried and convicted on the charge of possession of a weapon by a convicted felon. (ECF No. 4-25 at 17). On March 28, 2014, the trial court denied Petitioner's motion for a new trial. (ECF No. 4-23 at 6-7). The trial court granted the State 's motion for an extended term on the first-degree robbery count, and Petitioner was sentenced to an aggregate 35-year term of imprisonment.

(ECF No. 4-23 at 21-26). On April 11, 2014, Petitioner was resentenced to the same prison term, with clarification of the applicability of the Graves Act. (ECF No. 4-5 at 7).

Petitioner appealed on June 5, 2014. (ECF No. 4-1 at 76-77). On November 9, 2016, the Superior Court of New Jersey, Appellate Division affirmed Petitioner's conviction and sentence. (ECF No. 4-5). On January 30, 2017, the Supreme Court of New Jersey denied Petitioner 's petition for certification. (ECF No. 4-7 at 60). On December 4, 2017, Petitioner filed a pro se petition for post-Conviction relief (“PCR”) in the Superior Court of New Jersey, Law Division, Bergen County. (ECF No. 4-7 at 61-90). Oral argument was held on December 10, 2018, before the Honorable Robert M. Vinci, J.S.C. (ECF No. 4-24), who issued a written decision denying PCR relief on January 10, 2019. (ECF No. 4-7 at 91-109). On February 20, 2019, Petitioner appealed the denial of his PCR petition. (ECF No. 4-7 at 1-30). The Appellate Division affirmed the PCR court on April 21, 2021. (ECF No. 4-9).

II. BACKGROUND

On November 9, 2016, the Superior Court of New Jersey, Appellate Division affirmed Petitioner's conviction and remanded for resentencing, summarizing the facts as follows.

In October 2011, the Bergen County Prosecutor's Office Narcotics Task Force (NTF), received and acted upon information that Jose B. Rodriguez was involved with heroin distribution. Detective Michael Perez of the NTF contacted Rodriguez and posed as an interested buyer. Perez and Rodriguez had numerous conversations which resulted in an agreement whereby Rodriguez would sell Perez two kilos of heroin for $100,000. A meeting was set for the transaction on October 18, 2011, at the Hampton Inn in Ridgefield Park.

The NTF held a briefing on the morning of the planned transaction. Perez was equipped with a recording device and transmitter so that backup officers could monitor the conversation between Perez and Rodriguez. Perez prearranged a distress signal should he require assistance from the backup officers. At approximately 11:45 a.m., other backup officers arrived at the Hampton Inn to secure a vantage point. Perez spoke to Rodriguez indicating he was en route. Rodriguez advised Perez that he was also en route. At this time, backup officers observed a silver Chevrolet Malibu with New Jersey license plates and a silver Toyota Camry with New York license plates enter the parking lot. The backup officers observed Rodriguez exit the Camry, walk to the hotel's front entrance, and sit on a bench. The driver of the Camry was Yohan Balcacer. The other occupants were Brandon Segar and defendant. The backup officers advised Perez that Rodriguez arrived.

Perez arrived at the location approximately twenty-five minutes later, parked his car in the center of the lot, and phoned Rodriguez to coordinate a meeting place. Rodriguez walked to Perez's car, entered using the passenger-side door, and handed Perez a sample of a tan, powdery substance. Perez suggested he leave with the sample to test the quality and then would meet with Rodriguez in an hour to pay for the heroin. Rodriguez agreed with the suggestion and exited the vehicle. Perez then drove to a pre-determined location where he met with Sergeant Anthony Martino of the NTF. A field test was conducted which confirmed the substance to be heroin. Perez advised Rodriguez by phone that he would return at 1:00 p.m. with the $100,000.

While this was occurring, the Malibu left the Hampton Inn and proceeded to an Exxon gas station. Defendant exited the Malibu and entered the station's convenience store. The Camry remained at the Hampton Inn. Rodriguez exited the Camry holding a package that he placed in bushes near the hotel. Shortly thereafter Segar and defendant returned to the Hampton Inn, parking the Malibu in the rear lot.

Perez returned to the Hampton Inn and approached Rodriguez, who was sitting on a bench near the main entrance. Rodriguez and Perez walked to the bushes where the plastic bag was located. Perez opened the bag and observed a tan, powdery substance similar to the sample. Rodriguez then inquired about the money. Perez responded that it was in his car. As Rodriguez and Perez walked toward the car, the Malibu approached from the rear of the hotel moving slowly past Perez, with both Segar and defendant staring at him. The Malibu parked next to Perez's car. Perez was approached by defendant who racked the slide on a handgun and, from two feet away, pointed it at Perez's head. Perez ran toward the rear of the hotel yelling "gun." Perez remained at that location until he was met by a backup officer.

Defendant tried to open Perez's car when members of the Bergen County Sheriff's Department, Criminal Investigation Unit, converged on the scene. Defendant threw the gun under Perez's car and attempted, without success, to enter the Camry as it sped away.

Defendant ran toward Route 46, ignoring police officers' commands to stop, but was eventually apprehended and handcuffed. The officers located and seized a handgun from under the driver's side of Perez's car. A second handgun, located in the center console of the Malibu, was also seized. Both handguns were operable and loaded with metal jacketed, hollow-point bullets.

The drug sample Rodriguez provided to Perez was again analyzed and determined to be .67 grams of heroin. However, when the larger quantity of suspected heroin from the bag was analyzed, it was determined not to be a controlled dangerous substance.

A Bergen County grand jury returned a twenty-four count indictment against defendant, Rodriguez, Segar and Balcacer....Defendant filed a motion to dismiss the indictment. The motion was heard and denied.

A bifurcated jury trial involving only defendant commenced on November 7, 2013, and ended on December 4, 2013. Defendant did not testify and did not produce any witnesses. Defendant was acquitted of attempted murder and resisting arrest. He was convicted on all other charges. On December 5, 2013, defendant was tried and convicted before the same jury for the certain persons charge.

On the return date of the sentence, defendant's motion for a new trial was denied.

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