Hakeem v. Beyer, Civ. A. No. 90-2243.

Citation774 F. Supp. 276
Decision Date19 September 1991
Docket NumberCiv. A. No. 90-2243.
PartiesAli Abdul-Habib HAKEEM, Petitioner, v. Howard BEYER, Superintendent, Trenton State Prison, and Robert J. Del Tufo, Attorney General of New Jersey, Respondents.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey



Ali Abdul-Habib Hakeem, pro se.

Robert J. Del Tufo, Atty. Gen. of New Jersey by Janet Flanagan, Deputy Atty. Gen., Div. of Crim. Justice, Appellate Section, Trenton, N.J., for respondents.


DEBEVOISE, District Judge.

This is an action by petitioner Ali Abdul-Habib Hakeem pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. For the reasons stated below, the petition for a writ will be granted. However, in light of the reservations expressed herein execution of the writ shall be stayed pending appeal.


Elois Johnson is the proprietor of the Neighborhood Market Grocery Store located in Newark, New Jersey. During the weeks spanning August 14, 1983 to November 3, 1983, the Neighborhood Market was the target of no less than four armed robberies. On August 14, 1983, the Neighborhood Market was robbed by three individuals, one armed with a small caliber revolver. 2 Trial Transcript at 66-67, State v. Wooten, No. 604-2-84 (N.J.Super.Ct. Jan. 16, 1985) hereinafter "Trans.". The police were immediately notified and it was determined that between $100 and $200 had been stolen. 2 Trans. at 67; 3 Trans. at 87. Johnson and Joseph Hankerson, a store employee, described two of the perpetrators as black males, one approximately thirty years old, five feet two inches tall, the other approximately fifty years old, five feet six inches tall.1 3 Trans. at 94-95. At trial, both Johnson and Hankerson identified petitioner Ali Abdul-Habib Hakeem2 as the armed perpetrator. 2 Trans. at 66; 3 Trans. at 27.

On September 14, 1983, the Neighborhood Market was robbed by two individuals, one armed with a revolver. 2 Trans. at 66. The police were summoned and it was determined that between $100 and $200 had been stolen. 2 Trans. at 67; 4 Trans. at 4. Johnson described the perpetrators as black males, both approximately 21 years old, one six feet tall, 165 pounds, the other five feet eight inches tall, 140 pounds. 4 Trans at 9. Johnson also emphatically stated that one of these individuals had robbed his store approximately a month earlier. 4 Trans. at 5.

On October 16, 1983, the Neighborhood Market was again the target of an armed robbery.3 Afterwards, the police were called and it was determined that approximately $200 had been stolen. 2 Trans. at 67; 3 Trans. at 98. Johnson described one of the perpetrators as a black male in his forties, standing five feet four inches tall with greying black hair and brown eyes. 3 Trans. at 100. Johnson also stated that this was the same individual who had robbed his store approximately two months earlier. 3 Trans. at 98.

On November 3, 1983, at approximately 2:50 p.m., three individuals, one armed with a sawed-off shotgun, another with a .38 caliber revolver, entered the Neighborhood Market. 2 Trans. at 59, 61. The man armed with the shotgun ordered Johnson and Hankerson to hand over their money and to go to the rear of the store. 2 Trans. at 60-61; 3 Trans. at 28. The police later arrived and it was determined that the perpetrators had taken a red money bag containing between $300 and $400 of currency and food stamps. 2 Trans. at 63; 4 Trans. at 22. After being given a general description of the perpetrators4 and their getaway car (a black Oldsmobile), the police began a search of the immediate area, achieving negative results. 4 Trans. at 22; Suppression Hearing Transcript at 10, State v. Wooten, et al., No. 604-2-84 (N.J.Super.Ct. Jan. 7, 1985) hereinafter "Sup.Trans.".

Shortly after their initial investigation, a witness to the crime supplied the police with the license plate number of the car that drove the perpetrators from the scene. Sup.Trans. at 12. A trace of this license plate revealed that the automobile in question was registered to Bennie Roberts of 270 Dayton Street, Newark, New Jersey. The police immediately placed this location under surveillance. Sup.Trans. at 12. At approximately 3:35 p.m., the police stopped a black Oldsmobile in the general vicinity of 270 Dayton Street. Sup.Trans. at 13; 4 Trans. at 24. The car was occupied by three black males, all of whom were ordered out of the automobile and held at gunpoint. Sup.Trans. at 13; 4 Trans. at 23. The three individuals were then frisked for weaponry, but none was discovered on their persons. Sup.Trans. 35; 3 Trans. at 47.

The police then began a search of the automobile. On the rear floor of the car, the police discovered a loaded 13 gauge sawed-off shotgun partially covered by a piece of cloth. Sup.Trans. at 35; 3 Trans. at 48. This was the area of the vehicle in which the petitioner had been seated. Sup. Trans. at 15; 4 Trans. at 24. A .38 caliber revolver, loaded with six hollow-point bullets, was also discovered, as was a red pouch and four additional shotgun shells. Sup.Trans. at 37-38; 3 Trans. at 49-50.

The three individuals were then placed in the rear of a police car and taken to the scene of the robbery for purposes of obtaining a positive identification. 3 Trans. at 71-72. Upon arriving at the Neighborhood Market, Johnson and Hankerson were individually asked to view the suspects seated in the rear of the police car. Both positively identified petitioner as one of the persons involved in the robbery. 2 Trans. at 64-65; 3 Trans. at 29-30. The three were then taken to police headquarters for processing. A search of petitioner revealed that he was in possession of $15.10, comprised of both currency and food stamps. Sup.Trans. at 43; 3 Trans. at 53. The two other men were also searched and found to be in possession of $99.20 and $180.75, respectively. Sup.Trans. at 44-45; 3 Trans. at 55-56.

At trial, petitioner vehemently denied his involvement in the crime and raised an alibi defense. He testified that on November 3, 1983, at approximately 2:50 p.m., he was visiting the offices of the Newark Department of Sanitation in hopes of securing future employment. 4 Trans. at 77078. He claimed to have been seen at that location by two receptionists; however, the receptionists were unable to corroborate his account. 4 Trans. at 92-93, 107-108. He also indicated that he did not sign in or otherwise record his presence at this location. 4 Trans. at 79. Thus, no credible proof corroborating petitioner's alibi testimony was adduced at trial.

Petitioner further testified that after this interview he accepted a ride from the two other suspects connected with the November 3, 1983 robbery. 4 Trans. at 81-82. He denied that he ever saw any of the weapons later found in the car and claimed that he was unaware that a robbery had recently taken place. 4 Trans. at 84-86. Petitioner further testified that when he was brought to the Neighborhood Market by the police, neither Johnson nor Hankerson had been able to identify him as one of the perpetrators. 4 Trans. at 86. Petitioner also denied any involvement in any of the preceding Neighborhood Market robberies, 4 Trans. at 90, and stated that he was a forty-six year old light-skinned black male who weighed 127 pounds. 4 Trans. at 90-91. Johnson, however, not only confirmed his out of court identification of petitioner, but testified that petitioner was among the perpetrators of the August 14, September 14, and October 16, 1983 robberies. 2 Trans. at 64-68.


On February 7, 1984, petitioner was indicted by a grand jury in connection with the previously recounted robberies of the Neighborhood Market. The nine count indictment charged petitioner with four counts of armed robbery, N.J.S.A. 2C:15-1 Counts I-IV,5 aggravated assault, N.J.S.A. 2C:12-1(b)(4) Count V, unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) Count VI, unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) Count VII, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) Count VIII, and unlawful possession of hollow-nosed bullets, N.J.S.A. 2C:39-3(f) Count IX.6

On March 7, 1984, petitioner entered a plea of not guilty to all counts of the indictment. On December 11, 1984, petitioner filed a petition for a writ of habeas corpus with the United States District Court for the District of New Jersey. In support of this petition, the petitioner alleged the following grounds for relief: (1) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, (2) denial of a speedy trial in violation of the Sixth and Fourteenth Amendments, and (3) the imposition of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Honorable Frederick B. Lacey, United States District Judge, dismissed this petition without prejudice for failure to exhaust state remedies. Wooten v. Butler, No. 84-5134 (D.N.J. Mar. 25, 1985).

On January 7, 1985, the New Jersey Superior Court heard and denied a motion brought by the petitioner to suppress evidence procured during the petitioner's arrest. State v. Wooten, et al., No. 604-2-84 (N.J.Super.Ct. Jan. 7, 1985). On January 14, 1985, the Superior Court held a Sands7 hearing and determined that all of petitioner's prior convictions would be admissible into evidence to impeach his credibility should petitioner testify at trial. 1 Trans. at 1-8. On January 16, 1985, the Superior Court held a Wade8 hearing and determined that the State's out-of-court identifications of the petitioner would be admissible at trial. 2 Trans. at 14-31.

On January 16, 1985, the petitioner was tried before a jury in the Superior Court. By a verdict rendered on January 23, 1985, petitioner was found not guilty on counts I-III of the indictment. However, the jury did find petitioner guilty on the remaining six counts (IV-IX). On March 7, 1985, the court entered the judgment of conviction...

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3 cases
  • Warner v. US, LR-C-96-220
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • May 13, 1996
    ...the Court's initial opinion was filed, that fact did not prevent the Court from entering its stay order. See, e.g. Hakeem v. Beyer, 774 F.Supp. 276, 297-99 (D.N.J.1991), aff'd in part, rev'd in part and vacated, 990 F.2d 750 (3rd Cir.1993). As the court discussed in its initial opinion, Hil......
  • Hakeem v. Beyer
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 31, 1993
    ...Hakeem raises on his cross-appeal, we do so essentially for the reasons set forth in the district court's opinion. See Hakeem v. Beyer, 774 F.Supp. 276 (D.N.J.1991). 2 On the double jeopardy issue, we set forth our reasoning, which differs somewhat from that of the district court, in Part I......
  • U.S. v. Kyles
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 1994
    ...appeal because the defendant was convicted of robbery and thus posed a substantial risk of danger to the community. See Hakeem v. Beyer, 774 F.Supp. 276, 298 (D.N.J.1991) ("Armed robbery is a crime of extreme violence, regardless of the fact that no innocents were injured...."), writ of hab......

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