Suarez v. Bartkowski

• Decision Date: 20 December 2012
• Docket Number: Civil Action No. 10-6209 (FSH)
• Parties: MIGUEL A. SUAREZ, Petitioner, v. GREG BARTKOWSKI, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

MIGUEL A. SUAREZ, Petitioner,

v.GREG BARTKOWSKI, et al., Respondents.

Civil Action No. 10-6209 (FSH)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: December 20, 2012

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Petitioner prose

Miguel A. Suarez

Counsel for Respondents

Catherine Antoine Foddai

Bergen Co. Prosec. Office

HOCHBERG, District Judge

Petitioner Miguel A. Suarez, a prisoner currently confined at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Greg Bartkowski 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 Superior Court of New Jersey, Appellate Division.¹

According to the State's proofs at trial, on October 23, 1997, the blood-covered bodies of [Rajesh] Kalsaria, [Ajit] Hira, and [Bhushan] Raval were discovered inside Kalsaria's home at 71 Chestnut Street in Bogota. Hira and Kalsaria had been shot in the head at close range while they were lying face down on the floor, bound by duct tape. Raval had been shot in the face, likely while kneeling, and then stabbed twenty-six times in the neck, chest and abdomen before dying from his wounds. Over $60,000 in diamonds, gold jewelry and cash had been taken from the house, and Hira's Toyota Avalon was missing from Kalsaria's driveway.

Investigation at the scene uncovered pieces of a rubber silencer, as well as a knife covered with blood, later confirmed to be that of the victim Raval. Police also recovered several nine-millimeter bullets and a number of spent shell casings. It was subsequently determined that all of the bullets and casings had been discharged from the same weapon, which could have been a MAC 11 automatic firearm.

The State's investigation disclosed that Dimpy Patel, a wealthy entrepreneur in his thirties, first met Darwin Godoy, a twenty-year old Secaucus student who had hoped to secure employment with Patel through Patel's cousin, sometime in August 1997. Shortly thereafter, Patel requested that in return for $10,000, Godoy find a hit man who would be willing to do a job for him. Godoy had been acquainted with defendantSuarez, with whom he had been selling illegal cloned cell phones. Godoy knew Suarez to be a violent person who had bragged that he enjoyed killing people. Godoy arranged a meeting between Suarez and Patel, which he also attended.

During that meeting, Patel told Suarez that he wanted to hire him to kill a diamond merchant and that if he agreed, Suarez could keep any jewelry and cash he found inside the diamond merchant's home, estimated by Patel to be worth $200,000. Neither the identity nor address of the diamond merchant was disclosed by Patel at that time. After reaching an agreement, Patel gave $1,000 to Godoy for he and Suarez to purchase a firearm with a silencer. Thereafter, Suarez, co-defendant Morales, who was a long-time friend of Suarez, Godoy, and another man, Eddie Nieves, drove into New York City where Godoy and Suarez purchased a MAC 11 automatic firearm with a silencer from someone named "Mike," to whom they were introduced by Nieves.

Two days before the murders, Patel telephoned Godoy and provided the address of Kalsaria, the diamond merchant, which was 71 Chestnut Street, Bogota. The next day, Godoy and Suarez drove by the house. The following day, October 23, Godoy met Suarez, who was accompanied by Morales, [fn1] and they drove in separate vehicles to Bogota - Godoy in his Subaru, and Suarez and Morales in Suarez's Honda. After parking his vehicle, Godoy entered Suarez's vehicle and they drove to the area of 71 Chestnut Street.

[fn1] According to Godoy, until he saw Morales in Suarez's car, he had not known that Morales was going to be involved.

Suarez showed Godoy a light blue bullet-proof vest he intended to wear while carrying out the job, as well as the MAC 11 and silencer. Suarez also advised that he had brought along a nine-millimeter handgun and some duct tape which he planned to place over the victim's mouth, at which time Morales drew his hand across his mouth to pantomime what was going to occur. Suarez instructed Godoy to act as a lookout while he and Morales entered the residence and completed the hit. Suarez and Morales exited the vehicle, with Suarez carrying the firearm.

Godoy then returned to his car, drove by 71 Chestnut Street, circled back and parked a short distance away. From where he remained inside the parked vehicle, Godoy spotted Suarez and Morales walking along Chestnut Street towards the diamond merchant's home. Moments later, though, Godoy saw the pair walking back towards their car. Thereafter, Suarez called Godoy on his cell phone and advised that there were three men inside the house and that he did not know what to do. However, after a pause, Suarez said, "Fuck it. I'm going to do it."

Immediately thereafter, a police car operated by Officer James Sepp of the Bogota Police Department pulled alongside Godoy's vehicle to investigate why Godoy was parked there. Godoy told Officer Sepp he had been sent by his brother Carlos, the owner of J&J Maintenance in North Bergen, to estimate a garage for an upcoming construction project. During the conversation with Officer Sepp, Godoy's cell phone rang approximately five times, with Godoy abruptly terminating the calls. After some additional questioning, Godoy admitted to Officer Sepp that the three cell phones in his possession might be cloned phones. Officer Sepp seized the phones, issued two summonses to Godoy for various traffic violations, and let him go. Godoy then left the area, purchased a phone card and called Suarez, who informed Godoy that he had "whacked him" and had stolen various jewelry and diamonds from the home. Later, Godoy reported the information to Patel, who told Godoy that Suarez had dropped off some jewelry and diamonds and had left for Puerto Rico.

After the murders were discovered, Officer Sepp recalled the incident with Godoy, who had been present near the murder scene at or about the estimated time of the three murders. After being located and questioned during the police investigation, Godoy confessed to his involvement in the murders, implicating Suarez, Morales and Patel.

Based upon Godoy's statement, officers were dispatched to locate and apprehend Patel, Suarez and Morales. While police searched Morales' home shortly after his arrest at 3:00 a.m. on October 24, 1997, the phone rang and a man later identified as Suarez left amessage for Morales urging him to call back because there was an emergency.

Although police at first were unable to locate Suarez, they searched his Newark home and found a light blue bullet-proof vest hidden under a mattress. Later, when Sergeant Richard Barbato was speaking to Suarez's girlfriend, Betsy Tufino, at her apartment, Suarez called and Tufino handed the phone to Sergeant Barbato. The officer identified himself and told Suarez that he was investigating a triple homicide in Bogota which had taken place the day before. After denying any knowledge, Suarez angrily responded that the police would never find him and that he was not going to turn himself in. He then hung up. However, later that same day, Suarez did surrender to police at his attorney's office.

According to Tufino, who testified at trial, in early October 1997, she complained to Suarez about the frequent phone calls he was receiving from Godoy, whom she called by his nickname "Giovanni." Tufino was aware that Giovanni wanted Suarez to rob and kill an Indian man in return for $20,000 and some diamonds. Although she begged Suarez not to do it, Suarez would not respond. A few days later she overheard Suarez talking on the phone with Giovanni and again heard Giovanni encouraging Suarez to "do it." She also claimed that at some point prior to October 23, 1997, she overheard Morales tell his girlfriend on the telephone that he was going to rob and kill an Indian man. [fn2]

[fn2] Tufino admitted that in her first two statements to the police, she never mentioned the frequent phone calls from Giovanni or the intended plot to rob and murder an Indian man. She also acknowledged giving a videotaped statement to a defense investigator where she claimed that, in her third statement to police, she had merely repeated what she had read in the newspaper about the case, but explained Suarez's father had asked her to change her statement and that it was not the truth.

Patel was arrested at 8:00 a.m. on October 24, 1997 as he was driving away from his Gloucester Township home. A search of his car uncovered a bagcontaining a .45 caliber gun, several jewelry boxes containing assorted jewelry, Indian currency, and several clear gemstones. During a subsequent search of Patel's home, police found a piece of paper on which the name "Rajesh Kalsaria" had been written, along with Kalsaria's phone number, address and the notation "brick house." Police also found a Casio organizer, and a second piece of paper containing the name "Angel" (Suarez's nickname) and several telephone numbers later identified as Suarez's cell phone and pager numbers. Police also discovered Patel's address book, which had Godoy's phone information, another piece of paper with Godoy's number, and a business card for J&J Maintenance, Inc.

Hira's Toyota, which someone had tried unsuccessfully to burn, was ultimately located several blocks away from Suarez's home in Newark. Fibers gathered from Suarez's Honda Accord were subsequently determined to match fibers found on the duct tape removed from the murdered men.

Telephone records of the four conspirators were obtained and confirmed that between October 1 and 24, 1997, there were numerous calls between Godoy, Suarez and Patel. Godoy and Suarez had been on the phone for forty-one minutes just before Officer Sepp approached Godoy's parked Subaru on the day of the murders, and Suarez

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