Josephs v. Kirkpatrick

• Decision Date: 27 September 2012
• Docket Number: Civil Action No. 10-0753 (RMB)
• Parties: DARON JOSEPHS, a/k/a DOMINIC GIBBS, Petitioner, v. ROBERT A KIRKPATRICK, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

DARON JOSEPHS, a/k/a DOMINIC GIBBS, Petitioner,

v.ROBERT A KIRKPATRICK, et al., Respondents.

Civil Action No. 10-0753 (RMB)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date: September 27, 2012

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Petitioner pro se

Daron Josephs

Wende Correctional Facility

Alden, NJ 14004

Counsel for Respondents

Nancy P. Scharff

Camden Co. Prosecutor's Ofc.

25 North Fifth Street

Camden, NJ 08102-1231

BUMB, UNITED STATES DISTRICT JUDGE:

Petitioner Daron Josephs, a prisoner currently confined at the Wende Correctional Facility in Alden, New York, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Robert A. Kirkpatrick, the Commissioner of the New Jersey Department of Corrections, and the Attorney General of New Jersey.

For the reasons stated herein, the Petition will be denied.

I. BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Supreme Court of New Jersey.¹

The shootings that caused the deaths of [Leon] Mitchell, [Barrington] McLean, and [Christine] Williams on January 22, 1995, resulted from a dispute among brothers and friends involved in a marijuana distribution operation led by Emil Josephs. Emil lived in Camden in an apartment located at 3212 Federal Street. Residing with him at the time were his brother, Turan Josephs (TJ), and his friend Barrington McLean. The apartment occupied the second floor and attic of a house. On the second floor were two bedrooms, a kitchen, and one bathroom. McLean and TJ slept in the second floor bedroom located at the front of the house. Emil used the attic as his bedroom.

Although drugs were not distributed from the apartment, Emil kept a quantity of marijuana in a compartment under the stairs leading to the attic. Significant amounts of cash also were kept in the house at times. The drug-dealing business had become very busy around the end-of-year holidays in 1994, taking in approximately $15,000 per week at the time of the shootings. Emil shared the profits with McLean and TJ, allowing them a one-third share to split between themselves.

Sometime during December 1994, defendant (whose nickname is Dee) and Hugh Josephs Jr. (nicknamed Junior), Emil's half-brothers, moved into the apartment because they had agreed to install carpeting for Emil. It is noteworthy that defendant and Junior arrived in a red Honda Civic that they used while they remained atthe apartment on Federal Street. In terms of familial relations, we also note that Emil, TJ, defendant, and Junior share the same father, Hugh Josephs Sr.; however, Emil and TJ have a different mother from defendant and Junior.

Junior was promised $2500, and defendant $1500, to lay the carpeting. Lacking sufficient cash to pay them in full, Emil compensated Junior and defendant with marijuana to sell. The profits from those sales were sufficient to serve as payment for the carpet work. Junior and defendant then stayed on at the apartment, joining Emil's marijuana distribution business by selling for him at a designated location. Emil also enlisted Leon Mitchell and Christine Williams to become involved in the business. They too stayed at the apartment on Federal Street.

Emil was the only person present in the apartment on the evening of Saturday, January 21, 1995, who testified at defendant's trial. Other than defendant, and Junior, whose whereabouts are unknown, all of the others present were killed. According to Emil's testimony, on that Saturday he learned from his friend, "Bloody" (a business associate in the marijuana business), that defendant and Junior were selling marijuana purchased from another source, and that they were selling the other drugs at Emil's sales location. Apparently, the two were pocketing the money from those sales. Selling marijuana purchased from another distributor was contrary to Emil's direct orders to defendant and Junior when he allowed them to deal drugs for him.

Emil returned to the apartment that evening to find McLean, Mitchell, defendant, and Junior sitting in the kitchen. He had directed defendant and Junior to leave their designated sales post and to meet him back at the apartment. Emil described himself as enraged because defendant and Junior had not followed his orders. He told them they were "out of the business." The heated verbal confrontation escalated as Junior and Emil began to scuffle. Brandishing a kitchen knife, defendant approached Emil from behind, but he was disarmed by McLean. Emil ordered Junior and defendant to leave his house, and then proceeded into their bedroom where he took a nine millimeter and .45 caliber gun from their bags and began to pack their clothes.

Mitchell interceded and persuaded Emil to let defendant and Junior stay for the remainder of the night because it was past midnight. Nonetheless, Emil took the two guns with him to the attic where he had a third gun, a .357. Normally, a gun would be kept under the kitchen sink for "emergencies."

Emil left his attic bedroom several times that night. The first time he took all three guns with him while he showered before retiring. Again, at approximately one in the morning he went downstairs to use the bathroom, that time taking only the nine millimeter. As he passed by, he saw defendant and Junior awake and sitting on the floor in the bedroom they were using. Emil then encountered McLean in the kitchen, awake and upset over the evening's events. Emil left the nine millimeter with McLean as a show of "respect." Emil did not want McLean to think that he intended to disarm him when all of the guns were moved to Emil's attic room.

Sometime between five and six o'clock in the morning, Emil, dressed only in a tee shirt, underwear, and slippers, went downstairs. He saw defendant and Junior fully dressed in their room as he again passed by. Emil proceeded to the kitchen where he met up with Mitchell and Williams. After a brief time, Mitchell left the room, leaving behind Williams and Emil. Not long thereafter, Junior came in the room. Emil testified that although he was not paying close attention to what Junior was doing, he was aware that Junior went by the sink and then left the room, walking in a hunched-over manner. As noted, a gun typically had been kept in the cabinet under the sink.

Junior then reentered the room, and Williams screamed as he pointed the nine millimeter gun at Emil and stated "What's up now?" Emil asked him if he was going to shoot. Junior proceeded to pull the trigger, but the gun did not fire. While Junior reloaded, Emil jumped through a kitchen window, breaking the glass as he did. He landed, bleeding, in an alley. His neighbors, Delores Morrison and Raymond Mann, were in the alley at the time. They heard the breaking glass and saw Emil covered with blood from gashes on his leg and arm. He told them that he was in a fight and that someone was trying to kill him.

According to Emil, as he ran away from his apartment, he heard three shots, a pause, and then additional shots. He stated that he believed the shots sounded as if coming from different guns. He ran back to his neighbors and asked them if they heard the shots. Morrison said that she did. She also gave him a towel from her laundry basket to wrap around his wounds. Morrison said that she was going to call the police and went inside. Emil waited a few moments, but when Morrison did not return, he left. Morrison emerged from her apartment not long thereafter and found that Emil had left. She then observed two men leave the front door of Emil's apartment. She described them as fair skinned, perhaps Asian, stocky, and of medium height. Compared to the man who jumped out of the window, whom she described as approximately her height, (5'5" or 5'6"), she assessed the other two men as a bit taller. She observed the two men walk down the sidewalk, turn the corner, and disappear.

Emil hitched a ride to the apartment of his friend, Bloody, who arranged for friends to take Emil to New York. Bloody then drove to Philadelphia Airport to pick up TJ and Lorna Palmer, who were returning from Texas with some marijuana for Emil. He dropped them off at Emil's apartment. We note here that Bloody died before trial and, therefore, we have only TJ's recitation concerning these events.

Because TJ had forgotten his keys, he rang the doorbell. When no one answered, Palmer left. TJ then proceeded to climb into the apartment through one of the two kitchen windows, noticing the broken glass on the ground below the windows. TJ found food cooking on the stove and then discovered that Mitchell, McLean, and Williams had been shot to death. Not wanting to be involved in the shootings, TJ removed his personal items from the apartment. He then reported the murders to the police by calling from a pay phone and by flagging down a patrol car. He also contacted a police officer he knew through a friend.

Upon arrival, the police found no sign of forced entry. The three bodies were found in different locations in the apartment. McLean's body was in the front bedroom. Williams's body was found in a crouched position in a corner of the bathroom. Mitchell's body was at the top of the stairs lying on a shower curtainstill attached to its rod that had been pulled from its moorings.

The Investigation and Arrest

Dr. Robert Catherman, a medical examiner for Camden County, performed autopsies on all three victims. The autopsy on McLean revealed that he had been shot six times. The first bullet entered the top right side of McLean's head at a sharp downward angle, fracturing his skull and causing acute damage to his brain. The second shot went through McLean's face, obliterated his right eye, and exited through his left cheek. It caused bruising to the adjacent lobes of McLean's brain. The third shot entered the back of his left thigh, pierced his scrotum, and then entered and exited his right thigh. The fourth shot entered the back of McLean's upper right thigh and cut through his abdomen. That

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