TOKLEY v. RICCI et al
OPINION. Signed by Judge Kevin McNulty on 3/30/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANA T. TOKLEY,
Civ. No. 09-4546 (KM)
MICHELLE RICCI, et al.,
KEVIN MCNULTY, U.S.D.J.
Petitioner, Dana T. Tokley, is a state prisoner proceeding with a petition for writ of
habeas corpus pursuant to 28 U.S.C.
§ 2254. Presently pending before this Court is Mr. Tokley’s
application for an evidentiary hearing pursuant to Federal Rule of Civil Procedure 60(b). (See
Dkt. No. 56) Additionally, Mr. Tokley has filed an application to appoint pro bono counsel. (See
Dkt. No. 63) Therefore, the Clerk will be ordered to reopen this case for the sole purpose of
deciding these applications. For the reasons that follow, both applications will be denied and the
file will be re-closed.
Mr. Tokley brought this habeas petition to challenge his State conviction of first-degree
armed robbery and second-degree possession of a firearm for an unlawful purpose. In a
comprehensive 2012 opinion denying the habeas petition (Dkt. No. 39), the Honorable Katharine
S. Hayden set forth the factual details of Mr. Tokley’s crimes and trial as follows:
On November 11, 1996, Jose Martinez and another man he later
identified as Tokley held up Quality Automobiles, a car dealership
in Pennsauken, New Jersey. (Pet’r’s Br.App., State ofNew Jersey v.
Tokley, Appellate Division, Docket No. A—4725--99T4, Ba 2.)
Martinez was the state’s key witness at Tokley’s trial. (Id. at Ba 3.)
He testified that he, Tokley, and a third man, Elliot Rosario,
planned to rob Quality Automobiles, but on the night in question,
Rosario did not participate. (Id.) According to Martinez, he and
Tokley, both armed and masked and dressed in camouflage
clothing, drove to the Quality car lot. (Id) Martinez entered the
trailer and instructed the women inside to lie down on the ground
while Tokley concentrated on the manager, who they believed was
carrying significant cash. (Id.) According to the manager, Robert
Owens, one of the masked men, presumably Tokley, instructed
him to “give me the money,” and took $900 from him at gunpoint.
(Id. at Ba 2.) Owens was told to open the safe, but when he
explained that there was no safe, Martinez instructed his
accomplice to shoot Owens. (Id. at Ba 3.) There were no shots
fired; Martinez grabbed a pocketbook from one of the women; and
both masked men fled the scene. (Id.)
Martinez was the only witness at Tokley’s trial to identify Tokley
as the masked gunman. (Id.) In his testimony, Martinez explained
in detail how the armed robbery took place and said that he knew
Tokley from prior criminal activities. (Id.) At the time he testified
against Tokley, Martinez was serving a 20 year sentence for
aggravated manslaughter, and Rosario had been murdered. (Id.)
Martinez said he agreed to cooperate with the government and
testify in exchange for a lesser charge and because he was upset his
friend Rosario had been killed and he had concerns that he might
also be killed. (Id at Ba 2—Ba 3.) Tokley’s defense counsel, Scott
Griffith, vigorously cross-examined Martinez about his long
criminal history, his hatred of Tokley, and his discussions with
others about killing Tokley, in order to impeach his testimony. (id.
at Ba 4—5.) On redirect, Martinez began to more fully explain his
relationship with Rosario, whom he described as like a brother. (id.
at Ba 5.) He said he was very angry with Tokley because he had
influenced Rosario to kill someone in a prior drug transaction and
that person turned out to be the “wrong guy.” (Id.) As a result of
this, Martinez testified that if he could get away with it, he would
have killed Tokley. (Id.) Martinez then blurted out that Tokley had
killed Rosario in front of him. (ld) Griffith immediately objected
and requested a mistrial. (Id.) After discussions at sidebar, the
court overruled the objection and denied the request for a mistrial
and instead gave a limiting instruction to the jury as follows:
Ladies and gentlemen of the jury, you just heard the
witness, Jose Martinez, testify that he has enormous
animosity towards Dana Tokley because Dana
Tokley shot and killed his, I guess, best friend,
I have overruled the objection to that testimony and
I will allow you to consider it. But, I want you to
consider it for a very limited purpose. And that is,
for the limited purpose of deciding the credibility
and believability of Jose Martinez’ testimony about
Dana Tokley’s participation in the Quality Auto
In other words, you are entitled to consider whether
this witness has so much animosity towards Dana
Tokley because of the alleged death of Elliot
Rosario that he would falsely implicate Dana
Tokley in the robbery of Quality Auto.
But, bear in mind that Mr. Tokley is not on trial
here for the murder of Elliot Rosario and you
should not hold that statement against him. You
should not assume that because this witness is
saying that Dana Tokley killed Elliot Rosario you
should certainly not conclude that he did so.
You are to consider the statement for the limited
purpose and for only one purpose and that is in
deciding whether it may give the witness, Jose
Martinez, a motive to falsely implicate and falsely
accuse Dana Tokley in the robbery at Quality Auto
on November11, 1996.
So, we are here to decide whether the State has
proven Dana Tokley guilty beyond a reasonable
doubt of the armed robbery at Quality Auto. You
are certainly not here to decide whether Dana
Tokley is guilty of murdering Elliot Rosario.
(Id. at Ba 5—6.) Neither the prosecutor nor defense counsel
objected to the instruction. (Id. at Ba 6.) Before continuing with
Martinez’s testimony, the court further clarified its instructions:
Ladies and gentlemen, before Mi. Martinez resumes
the stand, let me just add one thing to the limiting
instruction I gave you a few minutes ago. I think it
was implicit in what I said. I want to make it
explicit. The testimony Mr. Martinez gave about
Mr. Tokley allegedly killing Elliot Rosario, you
should not assume from that that Mr. Tokley has a
propensity to commit crimes or that he’s a bad
person or an unlawful person in any way. Again, it’s
for the limited purpose of evaluating the motive of
the witness, Jose Martinez, to be truthful or not
Toklev v. Ricci, No. 09-4546, 2012 WL 194134, at *l2 (D.N.J. Jan. 20, 2012) (internal citations
and footnote omitted), afj’d, 541 F. App’x 168 (3d Cir. 2013).
Tn 2000, the jury convicted Mr. Tokley of first-degree armed robbery and second-degree
possession of a firearm for an unlawful purpose.
In 2009, Mr. Tokley filed this federal habeas petition. In January, 2012, Judge Haden
denied the habeas petition in full. (See Dkt. Nos. 39 & 40) In 2013, the United States Court of
Appeals for the Third Circuit affirmed the denial of the habeas petition. (See Dkt. No. 48)
Mr. Tokley latered filed his first motion pursuant to Federal Rule of Civil Procedure
60(b). (See Dkt. No. 51) Thereafter, the case was reassigned from Judge Hayden to me. (See Dkt.
No. 57) On June 23, 2015, I denied Mr. Tokley’s first Rule 60(b) motion.
As Mr. Tokley’s first Rule 60(b) motion was pending, however, filed a second Rule 60(b)
motion. (See Dkt. No. 56) This second Rule 60(b) application requests an evidentiary hearing
based on new evidence. The alleged new evidence is that the United States Attorney’s Office
charged and convicted someone else besides him for the murder of Miguel Batista. (See Id. at
p.1) According to Mr. Tokley, the Batista was the other murder (besides the murder of Rosario)
to which Martinez alluded in his trial testimony. (See Dkt. No. 56-1 at p.2) I ordered the
government to respond to Mr. Tokley’s application for an evidentiary hearing, and the
government has done so. (See Dkt. No. 62) Subsequently, Mr. Tokley filed several letters in
support of his application, as well as an application for the appointment of pro bono counsel.
A court considering any Rule 60(b) motion must apply a high “extraordinary
circumstances” standard. In the case of a State prisoner, the court must also consider whether the
application is truly a Rule 60(b) motion, or whether it is in substance a second or successive
Rule 60(b) motions are left to the sound discretion of the trial
court, consistent with accepted legal principles applied in light of
all relevant circumstances. Pierce Assoc. Inc. v. Nemours Found.,
865 F.2d 530, 548 (3d Cir. 1988). “A court may grant a Rule 60(b)
motion only in extraordinary circumstances, and a Rule 60(b)
motion is not appropriate to reargue issues that the court has
already considered and decided.” Weber v. Pierce, No. 13-283,
2016 WL 2771122, at *2 (D. Del. May 13, 2016) (citations and
footnote omitted); see also Cox, 757 F.3d at 120 (quoting Sawka v.
Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)).
Further, where, as here, a district court is presented with a motion
for reconsideration after it has denied a petitioner’s § 2254
application, the court must first determine if the motion constitutes
a second or successive application under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(b).
The Third Circuit has explained that,
in those instances in which the factual predicate of a
petitioner’s Rule 60(b) motion attacks the manner in
which the earlier habeas judgment was procured
and not the underlying conviction, the Rule 60(b)
motion may be adjudicated on the merits. However,
when the Rule 60(b) motion seeks to collaterally
attack the petitioner’s underlying conviction, the
motion should be treated as a successive habeas
Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004); see also
Parham, 496 F. App’x at 184 (citing Gonzalez, 545 U.S. at 524,
Jones v. Lagana, No. 12-5823, 2016 WL 4154677, at *1_2 (D.N.J. Aug. 3,2016).
This Rule 60(b) application attacks Mr. Tokley’s underlying conviction. Accordingly, it
is not properly considered a Rule 60(b) motion at all, but rather a second or successive habeas
petition. Mr. Tokley does not assert that he has received authorization form the United States
Court of Appeals for the Third Circuit for such a second or successive petition. See 28 U.S.C.
2244(b)(3)(A). Accordingly, this Court is without jurisdiction to address this application.’
For completeness, I note that even if I had jurisdiction to consider this motion, I would
deny it. A party is entitled to post-judgment relief based on “newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new trial under
Rulr 59(b).” FED. R. Civ. P. 60(b)(2). A motion based on newly discovered evidence under Rule
60(b)(2) must be brought within one year after the entry of the judgment. See FED. R. Civ. P.
60(c). I make the defendant-favorable assumption that this motion is directed to Judge Hayden’s
denial of Mr. Tokley’s habeas petition on January 20, 2012. (See Dkt. Nos. 39 & 40) Even so, it
is untimely; Mr. Tokley did not file this motion until more than three years later, in 2015.
Considering the motion under Rule 60(b)(6) would not save it. Rule 60(b)(6) “is a catch
all provision that authorizes a court to grant relief from a final judgment for ‘any.
other than those listed elsewhere in the rule.” Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014).
Unlike Rule 60(b)(2), Rule 60(b)(6) does not contain a limitations period, but requires that the
party file the motion “within a reasonable time.” See FED. R. Civ. p. 60(c); see also Davenport v.
Brooks, No. 06—5070, 2014 WL 1413943, at *5 (E.D. Pa. Apr. 14, 2014) (“There is no specific
I do not find it appropriate in the interest ofjustice to transfer this motion to the United
States Court of Appeals for the Third Circuit for consideration as a request to file a second or
successive habeas petition. See 28 U.S.C. § 1631. While Mr. Tokley alludes to “new evidence,”
it appears as if this new evidence was available to him during the pendency of his habeas petition
before Judge Hayden. Indeed, in his habeas petition, Mr. Tokley noted that “[tjhe United States
Attorney’s office has recently indicted someone else for the murder in US. v. Juan Rivera-Velez,
No. 06-445 (JEI).” (Dkt. No. 5 at p.19) Nevertheless, Mr. Tokley remains free to seek
authorization to file a second or successive habeas petition from the Third Circuit.
time limit for filing motions pursuant to Rule 60.
(b)(6). But, they must be filed within a
‘reasonable time.”) Nevertheless, the general one-year limit remains a rule of thumb: “A motion
under Rule 60(b)(6) filed more than a year after final judgment is generally untimely unless
‘extraordinary circumstances’ excuse the party’s failure to proceed sooner.” Gordon v. Monoson,
239 F. App’x 710, 713 (3d Cir. 2007). Such”extraordinary circumstances” will “rarely occur in
the habeas context.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
There are no such extraordinary circumstances here. As indicated in note I, supra, Mr.
Tokley had the purported “newly discovered evidence” at his disposal at the time he filed his
original habeas petition before Judge Hayden. In fact, he explicitly alluded to the fact that
someone else had been charged with the murder of Miguel Batista in his 2009 habeas petition.
Mr. Tokley did not file this request for relief from judgment until 2015, more than three years
after Judge Hayden denied his habeas petition. Accordingly, to the extent that his request for
post-judgment relief could be construed as seeking relief under Rule 60(b)(6), it would be
untimely as well. See Moolenaar v. Gov’t of VL, 822 F.2d 1342, 1348 (3d Cir. 1987) (holding
Rule 60(b)(6) motion filed almost two years after the district court judgment was not made
within a reasonable time when the reason for attack upon that judgment was available for attack
upon the original judgment).
Mr. Tokley’s application for an evidentiary hearing pursuant to Rule 60(b) will therefore
CERTIFICATE OF APPEALABILTIY
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
“A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller—El v. C’ockrell, 537 U.S. 322, 327
(2003). To the extent one may be necessary with respect to my denial of Mr. Tokely’s request for
an evidentiary hearing pursuant to Rule 60(b), 1 decline to grant Mr. Tokley a certificate of
APPLICATION FOR THE APPOINTMENT OF PRO BONO COUNSEL
Mr. Tokley has also filed an application for the appointment of counsel. (See Dkt. No.
63) Mr. Tokley does not have a right to counsel in habeas proceedings. See Reese v. Fulcomer,
946 F.2d 247, 263 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C.
1-lowever, 18 U.S.C.
§ 3006A(a)(2)(B) provides that the court has discretion to appoint counsel
where “the court determines that the interests ofjustice so require
In Reese, the Third Circuit
explained that in determining whether counsel should be appointed, a court “must first decide if
petitioner has presented a nonfrivolous claim and if the appointment of counsel will benefit the
petitioner and the court. Factors influencing a court’s decision include the complexity of the
factual and legal issues in the case, as well as the pro se petitioner’s ability to investigate facts
and present claims.” Reese, 946 F.2d at 263-64.
The appointment of counsel is not warranted in this case. As described above, Mr. Brown
fails to show that he has a colorable entitlement to relief under Rule 60(b).
For the foregoing reasons, Mr. Tokley’s request for an evidentiary hearing pursuant to
Rule 60(b) will be denied, as will his application for the appointment of pro bono counsel. A
certificate of appealability shall not issue. An appropriate order will be entered.
DATED: March 30, 2017
United States District Judge
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