Primus v. Bonds

• Decision Date: 15 March 2021
• Docket Number: Civil Action No. 15-5671 (CCC)
• Parties: DRAKE PRIMUS, Petitioner, v. WILLIE BONDS, Respondent.
• Court: U.S. District Court — District of New Jersey

DRAKE PRIMUS, Petitioner, v. WILLIE BONDS, Respondent.

Civil Action No. 15-5671 (CCC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 15, 2021

**NOT FOR PUBLICATION**

OPINION

CECCHI, DISTRICT JUDGE.

Before the Court is the Amended Petition for a writ of habeas corpus of Petitioner Drake Primus ("Petitioner"), brought pursuant to 28 U.S.C. § 2254. ECF No. 5. For the reasons set forth below, Petitioner's habeas petition is denied, and Petitioner is denied a certificate of appealability.

I. BACKGROUND

The following factual summary is taken from the opinion of the Superior Court of New Jersey, Appellate Division, on direct appeal:

[Petitioner and his two co-defendants] were all charged in each of the six counts of the indictment with the following offenses: (1) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6; (2) first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; (3) third-degree possession of a weapon (a box cutter knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (4) fourth-degree unlawful possession of a weapon (a box cutter knife), N.J.S.A. 2C:39-5d; (5) third-degree possession of a weapon (a baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4d; and (6) fourth-degree unlawful possession of a weapon (a baseball bat), N.J.S.A. 2C:39-5d.

. . . Primus was found guilty of the offenses charged in Counts One (second-degree aggravated assault), Two (first-degree armed robbery), and Four (fourth-degree unlawful possession of a box cutter knife); Primus was acquitted of Count Three.

. . .

In sentencing Primus, the court merged Count Four with Count Two (first-degree robbery), for which it imposed a term of thirty-five years imprisonment with an eighty-five percent parole disqualifier and five years parole supervision pursuant to NERA. On Count One (second-degree aggravated assault), the court imposed a concurrent nine-year term with an eighty-five percent parole disqualifier and three years parole supervision pursuant to NERA. The sentences were ordered to be served consecutively to a sentence Primus was then serving.

On December 6, 2005, at about 2:00 a.m., the Paterson police received a call advising of a crime in progress at 775 East 19th Street. The information was broadcast by radio, and within one to two minutes, Detectives Jaime Navarro, Carlos Charon, and Felix Arroyo arrived at the intersection of Park Avenue and Madison Avenue, a location near the one described in the dispatch, where they found Zabotinsky. The detectives were in plain clothes and arrived in an unmarked vehicle.

Zabotinsky had parked his pickup truck at an irregular angle and partially on the sidewalk. When the detectives arrived, another man was standing outside the truck. This individual, who was never identified and who left the scene, was trying to get Zabotinsky to calm down. Zabotinsky's throat had been slashed. A deep side-to-side laceration exposed his esophagus. Before the detectives asked Zabotinsky any questions, he stated that he was just robbed and pointed toward 17th Avenue and 19th Street, indicating that was the direction is which his assailants had gone. According to Charon, Zabotinsky said that "three individuals" had robbed him. Navarro, in describing what Zabotinsky said, did not say that he had specified the number of attackers.

Charon described his perception of the circumstances, acknowledging that it was a "very volatile situation," and was "[p]otentially violent." He described it as a crime in progress, and said it raised concerns in the minds of the detectives.

The detectives instructed Zabotinsky to remain at the scene with another officer who had arrived and to wait for medical assistance.

The detectives then left, going in the direction Zabotinsky had indicated, to search for the assailants.

At the same time that the detectives had responded to Zabotinsky's location, Officers Robert Orozco and Jonathan Catrolla were also responding to the initial broadcast of a crime in progress. They were on patrol together and were about ten blocks from the reported location when they heard the dispatch. They were in police uniforms and driving a marked police vehicle. They activated their lights and siren and arrived at Madison Avenue and 17th Avenue within one minute of hearing the dispatch.

About one block from the location where Zabotinsky was found, Orozco and Catrolla encountered three men on 17th Avenue between Madison Avenue and 19th Street. The three were later identified as the three defendants. They were walking away from 19th Street, the area where Zabotinsky was located. They were the only individuals in the area. The officers got out of their vehicle and directed the men to stop. They did not comply, but continued walking toward the officers. Another Officer, Scott Eason, also arrived at the scene within about one minute of the dispatch. He approached Primus from behind and tackled him. Eason searched Primus and found a set of keys in his pants pocket, which was later determined to be Zabotinsky's.

Detectives Navarro, Charon and Arroyo arrived as the defendants were being detained by the other officers. Navarro retraced the route between the arrest location and the location where they had encountered Zabotinsky. He found a blue aluminum baseball bat, later identified as belonging to Zabotinsky. In the street, in front of 781 East 19th Street (very close to the location reported by the caller to the police, namely, 775 East 19th Street), Navarro located a size eleven Vans sneaker, several items of clothing, and an automobile insurance declaration page for Zabotinsky's policy. When the detectives had first encountered Zabotinsky, he was wearing no shoes. At trial, Zabotinsky's father identified the clothing and insurance document as articles belonging to his son. He also said that his son wore size eleven Van sneakers like the one recovered at the scene.

Defendants were transported to police headquarters and processed. No money or evidence was found on Manigo or Dix. However, Primus' sweater was stained with blood. DNA testing revealed that the blood on Primus' sweater was Zabotinsky's. After the three defendants were detained, Zabotinsky drove his pickup truck approximately one block to their location. He identified them as hisassailants. This occurred about twelve to fourteen minutes after the attack. In the course of that encounter, Zabotinsky made other statements regarding the attack on him.

Zabotinsky was then transported to the hospital in an ambulance. While in the ambulance, Charon briefly interviewed Zabotinsky, and received further information from him about the incident while medical treatment was being administered. Subsequently, Zabotinsky gave a formal statement to the police.

At trial, none of the defendants testified or called any witnesses.

ECF No. 12-15 at 3-5, 9-12.

Petitioner appealed his conviction and sentence, and the Appellate Division affirmed on August 1, 2011. ECF No. 12-15. The New Jersey Supreme Court denied certification on January 13, 2012. ECF No. 12-22. Petitioner filed a petition for post-conviction relief ("PCR"), which was denied on March 14, 2013. ECF No. 12-13 at 12-20. Petitioner appealed the denial of PCR and the Appellate Division affirmed on December 12, 2014. ECF No. 12-24. The New Jersey Supreme Court denied certification on April 30, 2015. ECF No. 12-29. Petitioner then filed a habeas petition with this Court, which he executed on July 13, 2015. ECF No. 1. The Court administratively terminated the case and Petitioner filed an Amended Petition, executed on January 4, 2016, in which he raises four grounds for relief:

1. Trial counsel was ineffective for not filing the pre-trial suppression motion challenging the Paterson Police for tampering with the evidence, specifically, money taken from petitioner upon arrest.

2. Trial and appellate counsel were ineffective for not objecting to the prosecution's failure to dismiss the aggravated assault [charge] against petitioner, based upon co-defendant ultimately being charged for this specific crime by the State.

3. Trial and appellate counsel were ineffective for not challenging the trial judge's finding of aggravating factors and petitioner's juvenile record to impose an extended term sentence, violating petitioner's [S]ixth [A]mendment right to trial by jury, also petitioner[']s Fourteenth [A]mendment of Due Process [rights].

4. Trial and appellate counsel were ineffective for not challenging the prosecutor's abuse of discretion, violating Brady v. Maryland, also the trial court [decision] was contrary to, and applied an unreasonable application to clearly established law concerning Brady v. Maryland, violating petitioner's Due Process [rights].

ECF No. 5.

Respondents filed an Answer in which they argue that all four of Petitioner's claims are unexhausted and lack merit. ECF No. 15-1.¹

II. LEGAL STANDARD

Under 28 U.S.C. § 2254(a), the district court "shall entertain an application for a writ of habeas corpus [o]n 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." A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition. See Harrington v. Richter, 562 U.S. 86, 98 (2011); Price v. Vincent, 538 U.S. 634, 641 (2003). District courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).

Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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