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Landano v. Rafferty

argued: July 27, 1988.

VINCENT JAMES LANDANO, APPELLANT
v.
JOHN J. RAFFERTY, SUPERINTENDENT, RAHWAY STATE PRISON, AND IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY



Appeal from the United States District Court for the District of New Jersey, D.C. Civ. No. 85-4777.

Gibbons, Chief Judge, Seitz and Hutchinson, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

Appellant Landano appeals the order of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). 670 F. Supp. 570. This court has jurisdiction under 28 U.S.C. § 1291 (1982).

I. Background

In August 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearny, New Jersey. During the robbery, one of the gunmen shot and killed a Newark police officer. A Hudson County grand jury indicted Landano and three other men, Allen Roller, Victor Forni, and Bruce Reen, for felony murder and other crimes stemming from the robbery. The trial of Forni and Reen was severed. Roller plead non vult to the felony murder charge and agreed to testify against Landano, whose case proceeded to trial in New Jersey Superior Court.

The evidence at trial depicted the crime and its immediate aftermath essentially as follows. One of the perpetrators entered the trailer that housed the check cashing service, and the other remained outside. While the robbery was in progress, a Newark patrol car driven by Officer John Snow entered the parking lot of the service. The perpetrator who had remained outside approached the patrol car and shot Officer Snow at close range, killing him. The two perpetrators sped away from the service in an automobile. They soon came upon a blocked intersection. In an effort to escape the traffic, the driver manuevered on to a railroad right of way nearby and drove along the tracks for some distance.

The evidence linking Landano to the crime included the following. Roller testified that he and Landano committed the robbery, with Roller entering the trailer and Landano remaining outside. Roller also testified that when he rejoined Landano outside, Landano stated that he had had to "ice [or waste] the cop."

An employee of a warehouse near the scene of the crime testified that he saw a dark-haired man approach a police patrol car in the parking lot of the check cashing service. The employee turned away from the parking lot and then heard gunshots. When he looked back to the parking lot, he saw a green Chevrolet, driven by the darkhaired man, pulling away from the lot. The employee was unable to identify the dark-haired man, but Landano had dark hair.

Jacob Roth, the owner of the check cashing service, identified Landano as a participant in the crime. Roth, however, maintained that Landano was the one who entered the trailer, not the one who stayed outside. Roth also observed the license number of the vehicle in which the perpetrators drove away.

Raymond Portas, a truck driver, testified that while sitting at a blocked intersection in Kearny on the morning of the crime, he saw a green Chevrolet manuever out of traffic and then proceed along nearby railroad tracks. Portas's description of the license number of the vehicle matched Roth's. At trial, Portas identified Landano as the driver of the vehicle and testified that he had picked Landano's photograph out of an array at a pre-trial identification session.

After approximately two days of deliberation, the jury informed the trial judge that it was unable to reach an unanimous verdict on any of the counts submitted. The judge delivered a supplemental charge and ordered the jurors to resume their deliberations. Approximately one hour later, the jury returned a verdict finding Landano guilty on all counts. Landano was sentenced to life imprisonment on the felony murder count and a consecutive term of seven to fifteen years on the remaining counts.

After exhausting his state remedies, Landano petitioned the district court for a writ of habeas corpus. The district court denied ...


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