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Landano v. Rafferty

filed as amended.: February 27, 1990.

VINCENT JAMES LANDANO, RESPONDENT
v.
JOHN J. RAFFERTY, SUPERINTENDENT, (EAST JERSEY STATE PRISON), PETER PERRETTI, (ATTORNEY GENERAL, STATE OF NEW JERSEY), LESLIE FAY SCHWARTZ, (DEPUTY ATTORNEY GENERAL), THE OFFICE OF THE HUDSON COUNTY PROSECUTOR, KEARNEY POLICE DEPARTMENT, NEWARK POLICE DEPARTMENT, JERSEY CITY POLICE DEPARTMENT AND PERTH AMBOY POLICE DEPARTMENT, PETITIONERS NO. 89-5504 HONORABLE H. LEE SAROKIN, U.S. DISTRICT COURT JUDGE, NOMINAL RESPONDENT. VINCENT JAMES LANDANO V. JOHN J. RAFFERTY, SUPERINTENDENT, RAHWAY STATE PRISON, AND IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY. VINCENT JAMES LANDANO V. JOHN J. RAFFERTY, SUPERINTENDENT (EAST JERSEY STATE PRISON), PETER PERRETTI, (ATTORNEY GENERAL, STATE OF NEW JERSEY), LESLIE FAY SCHWARTZ, (DEPUTY ATTORNEY GENERAL), THE OFFICE OF THE HUDSON COUNTY PROSECUTOR, KEARNEY POLICE DEPARTMENT, NEWARK POLICE DEPARTMENT, JERSEY CITY POLICE DEPARTMENT AND PERTH AMBOY POLICE DEPARTMENT. JOHN J. RAFFERTY, SUPERINTENDENT, EAST JERSEY STATE PRISON, AND PETER N. PERRETTI, JR., ATTORNEY GENERAL OF NEW JERSEY, APPELLANTS NO. 89-5625 & 89-5638



On Appeal from the United States District Court for the District of New Jersey D.C. Civil Nos. 85-4777 & 89-2454.

Hutchinson, Cowen and Rosenn, Circuit Judges

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

The various appellants-petitioners in this action, whom we will refer to collectively as "the State of New Jersey," appeal an order of the district court conditionally granting the petition of Vincent James Landano ("Landano") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). The writ was issued incident to Landano's successful motion under Fed.R.Civ.P. 60(b) for relief from an earlier judgment of the district court denying his petition. Landano's 60(b) motion, which in effect renewed his initial petition and raised additional claims, was premised on alleged prosecutorial fraud. Because we find that Landano has not satisfied the exhaustion requirement of section 2254 with respect to certain additional claims he has raised in his 60(b) motion, we will reverse the district court's order granting the conditional writ, and remand with directions to dismiss the petition and vacate all orders entered subsequent to the court's initial order denying Landano's petition.

I.

On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearney, New Jersey ("the Kearney robbery").*fn1 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 ("Roller"), Victor Forni ("Forni") and Bruce Reen ("Reen"), for felony murder and other crimes stemming from the robbery. The trial of Forni and Reen was severed from that of Landano and Roller. However, prior to the commencement of the Landano and Roller trial, and pursuant to a plea agreement with the prosecutor, Roller pled non vult to the felony murder charge and testified against Landano.

Evidence at Landano's trial showed that the Kearney robbery was the work of a motorcycle gang known as "The Breed." According to the testimony of Breed members and affiliates, the gang frequently planned and executed armed robberies in the Staten Island area. The evidence also revealed that Roller, the president of The Breed's Staten Island chapter, and Forni, who was not a Breed member but reputedly responsible for organizing most of The Breed's criminal activities, conceived of the plan to rob the Hi-Way Check Cashing Service.

It was undisputed that Landano was neither a Breed member nor affiliate. However, Roller testified that Landano was specifically recruited for the Kearney job because he was a friend of Forni. Roller insisted at trial that although Forni had orchestrated the robbery, Forni did not participate in the actual execution of the crime.

According to the testimony at the trial, two men arrived at the Hi-Way Check Cashing Service in the early morning hours of August 13. One of the perpetrators entered the Service's trailer/office, while the other remained outside. During the robbery, Officer John Snow pulled into the parking lot in his patrol car. The perpetrator who had remained outside walked up to the patrol car and shot Officer Snow at close range, killing him. The two perpetrators then sped off in a green Chevrolet.

Landano was linked to the crime through the testimony of several witnesses. Roller testified that he and Landano were the perpetrators and that he was the individual who had entered the trailer while Landano remained outside. Roller also told the court that Landano informed him later that he had to "ice" or "waste" the police officer.

Jacob Roth ("Roth"), the owner of Hi-Way Check Cashing Service, also identified Landano as a participant in the robbery, but Roth testified that Landano had been the individual who entered the trailer, not the one who remained outside. In addition, Roth was able to observe the license plate of the automobile used by the perpetrators.

Joseph Pascuiti ("Pascuiti"), an employee of an adjacent warehouse, testified that he observed from his workplace window a dark haired man approach Officer Snow's patrol car. However, Pascuiti then turned away from the window. When he heard gunshots and again focused his attention on the parking lot, Pascuiti saw a green Chevrolet, driven by the same dark haired man who had approached the patrol car, pulling hurriedly out of the parking lot. Pascuiti was unable to identify the dark haired man as Landano.

In attempting to escape from the crime scene, the perpetrators came upon a blocked intersection. The efforts of the driver to maneuver through the traffic attracted the attention of Raymond Portas ("Portas"), a truckdriver sitting in the stalled traffic. Portas testified that he saw a green Chevrolet pull out of the line of traffic and proceed along adjacent railroad tracks. Portas' description of the license plate number matched Roth's. At trial, Portas was able to identify Landano as the driver of the car. Furthermore, Portas stated that he had also picked Landano's photograph out of an array shown to him at a pre-trial identification session.

Thus, the evidence at Landano's trial linking him to the crime included: Roller's testimony naming Landano as his partner; Roth's identification of Landano as the participant who entered the trailer; Pascuiti's testimony that the killer of Officer Snow was the driver of the green Chevrolet; and Portas' testimony that the driver of the green Chevrolet was Landano. After approximately two days of deliberations, the jury informed the court that it was unable to reach a unanimous verdict on any of the submitted counts. At that point, the court delivered a supplemental charge and ordered the jurors to continue their deliberations. One hour later the jury returned a verdict finding Landano guilty on all counts. On May 17, 1977, Landano was sentenced to life imprisonment on the felony murder count and a consecutive term of seven to fifteen years on the remaining counts.

Landano filed a Notice of Appeal on June 29, 1977. On September 26, 1978, Landano also filed a motion in the Superior Court of New Jersey, Appellate Division, seeking remand to the trial court for consideration of his motion for a new trial. The motion was based on three grounds: (1) Roller's alleged prison recantation in which he allegedly told two other prisoners that he had committed the Kearney robbery with someone other than Landano; (2) newly discovered evidence allegedly linking Forni to a Jersey City robbery that Roller had admitted committing at Landano's trial, but with someone other than Forni; (3) and a Brady*fn2 claim alleging that the prosecutor had suppressed evidence possibly linking Roller, Forni and Reen to one or two Perth Amboy robberies occurring sometime prior to the Kearney holdup.

An order granting Landano's motion was entered on October 17, 1978. Three days of evidentiary hearings were then held by the trial court, after which Landano's motion was denied. The Appellate Division subsequently both denied Landano's direct appeal and affirmed the trial court's denial of his motion for a new trial. Landano's petition for certification was denied by the New Jersey Supreme Court.

On March 31, 1982, Landano filed a petition for post-conviction relief. According to Landano, the issues raised in this petition were the following:

(1) Whether [the trial court's] "Allen" charge*fn3 required vacation of the conviction.

(2) Whether newly discovered evidence as to [the] coercion of . . . Roth in obtaining identification testimony against Landano required vacation of the conviction.

(3) Whether newly discovered evidence that the prosecutor had coached . . . Portas in obtaining his photographic and in-court identification of . . . Landano required vacation of the conviction.

(4) Whether newly discovered evidence that the State had concealed [Officer] Snow's connection to . . . Roller and that . . . Roller had perjured himself at trial about such connection required vacation of the conviction.

(5) Whether the sheer accumulation of prosecutorial misconduct compels the overturning of . . . Landano's conviction .

[(6)] Whether the State's loss or destruction of two photographs of the display shown . . . Portas in obtaining an identification of . . . Landano required vacation of the conviction.

[(7)] Whether the State's failure to sequester . . . Portas so that he could not view the defendant as he was led into the trial court just prior to Portas' in-court identification testimony unduly tainted Portas' identification and otherwise deprived defendant of a fair trial.

App. at 484 (Landano's Brief in Support of his appeal of the trial court's denial of his petition for post-conviction relief). Issues (3), (6) and (7) arose out of Portas' recantation of his trial testimony. As part of his recantation, Portas has stated under oath that when he was asked initially to identify the driver of the getaway car he selected someone other than Landano from the array and that only later, after the police had removed the selected photograph and told him to continue looking at the array, did he tentatively identify Landano as resembling the driver. In addition, Portas has stated that he did not recognize Landano when Landano and his attorney walked past him in the courthouse hallway prior to Portas' in-court identification until a police officer told him immediately after the encounter that one of the two men was "our man."

The trial court conducted evidentiary hearings pursuant to this petition. Thereafter, the court issued a series of letter opinions, ultimately denying Landano's requested relief. The court's decision was based primarily on its finding that Portas' recantation was incredible. On January 30, 1984, the Appellate Division denied Landano's appeal, and on June 13, 1984, the Supreme Court of New Jersey denied certification. The issues raised by Landano in the Appellate Division and in his petition for certification to the New Jersey Supreme Court were substantially the same as those raised in the trial court.

On October 10, 1985, Landano filed a petition for a writ of habeas corpus in federal court.

As grounds for relief [Landano] [alleged]: (1) that his due process rights to a fair trial were infringed by the admission of . . . Portas' identification testimony; (2) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of codefendant . . . Roller; (3) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of . . . Roth . . . ; (4) [and] that the state court's coercive charge to the jury violated [Landano's] Sixth Amendment right to an impartial jury.

Landano v. Rafferty, 670 F. Supp. 570, 573 (D.N.J. 1987), aff'd, 856 F.2d 569 (3d Cir. 1988), cert. denied, 489 U.S. 1014 , 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989). These four claims had all been properly exhausted in the state proceedings initiated by Landano. After holding its own evidentiary hearing on issue (1), the district court found that Portas' recantation was credible. However, the court recognized that it was bound by the prior credibility finding of the state trial court and, therefore, found no due process violation as a result of the admission of Portas' identification. Moreover, the court found that although relevant impeachment evidence of both Roller and Roth had been suppressed by the State, such information was not material in light of Pascuiti's trial testimony linking the killer of Officer Snow to the driver of the getaway car and Portas' identification of Landano as that driver. Id. at 585-88.*fn5 The district court reluctantly denied the petition. This Court affirmed, Landano v. Rafferty, 856 F.2d 569 (3d Cir. 1988), and the United States Supreme Court denied certiorari. Landano v. Rafferty, 489 U.S. 1014 , 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989).

On June 7, 1989, Landano filed with the district court a motion to reopen the previous habeas proceeding, pursuant to Fed.R.Civ.P. 60(b), and an ex parte application for a temporary restraining order. The motion requested the court to vacate the prior judgment because of fraud on the part of the prosecution. Specifically, Landano alleged that state investigation reports, recently obtained by Landano's own investigator, revealed that the prosecution had intentionally suppressed information that at least two witnesses had identified Forni as the driver of the getaway car. Landano sought relief in the form of an order to show cause why a writ of habeas corpus should not issue, and a temporary restraining order directing that the United States Marshal seize all files pertaining to the Kearney robbery maintained by the New Jersey Attorney General, the Hudson County Prosecutor, and several police departments.

The ex parte application for a temporary restraining order was granted by the district court on June 8, 1989, and Landano's counsel thereafter reviewed all of the files, except for portions that the State of New Jersey claimed were protected by work product privilege or confidentiality. At a hearing on June 14, the State presented the district court with a list of items deemed privileged or confidential. After reviewing these documents in camera, the district court granted in part and denied in part the State's claims.

On June 28, 1989, the district court filed an order to show cause why a writ of habeas corpus should not issue. After taking submissions from the parties and hearing oral argument, the district court, on July 27, 1989, vacated its earlier order denying Landano's petition and issued a conditional writ of habeas corpus requiring that the State of New Jersey release Landano unless a new trial is commenced within 90 days.*fn6 The basis for the district court's reversal of its previous decision was the discovery by Landano's counsel of two allegedly suppressed and exculpatory documents in the State's files.*fn7 The first document was a handwritten sheet of paper labeled "ID on Landano" allegedly containing information that several witnesses were suggestively shown a single photograph of Landano but even so rejected it as being a likeness of one of the perpetrators. Significantly, one of the witnesses identified in the document is Pascuiti, a key witness for the State. The second document is a Kearney Police Continuation Report containing an apparent identification of Forni as the driver of the getaway car by an eyewitness named "Joseph Pasapas."*fn8

After finding that both of these documents had indeed been suppressed, the district court determined that the information contained in both of the documents was also material. Importantly, the court's materiality analysis of the "ID on Landano" document required a simultaneous re-evaluation of its earlier analysis of the suppression claims raised in Landano's initial habeas corpus petition:

The court prefaces its discussion of the materiality of the [handwritten "ID on Landano" document] by noting that consideration of the case against Landano "as a whole" necessarily includes the court's conclusions in Landano, 670 F. Supp. at 585, 588, regarding the suppression of evidence which could have impeached the testimony of Roller and Roth at trial.

The evidence at trial linking Landano to the crime consisted of the testimony of Portas . . . and the testimony of Roller and Roth. In its prior opinion, the court held that the suppression of evidence which impeached the testimony of Roller and Roth was not material in light of the other evidence linking Landano to the murder. That "other evidence" is now called into question, and thus the court's materiality determination regarding the suppression of impeachment evidence against Roller and Roth must also be reevaluated. Such impeachment evidence becomes material when considered in light of facts indicating that Pascuiti, the State's only witness to the shooting, may have ruled out Landano as the murderer.

Landano v. Rafferty, 126 F.R.D. 627, 648-49 (D.N.J. 1989). The court argued that had the defense been apprised of the "ID on Landano" document, they could have used it to argue to the jury that Pascuiti had already ruled out Landano as the killer of Officer Snow. If the jury accepted this argument, then the State's case unravels:

In its prior opinion, this court noted that two witnesses testified that the killer of Officer Snow was also the driver of the getaway car. The prosecutor has already been found to have suppressed Brady material with respect to . . . Roller, one of those two witnesses. The court could not find a Brady violation, however, because there was a second witness, Pascuiti, who testified that the killer and driver were one and the same, and a third witness, Portas, who had identified Landano as the driver. Now, the record supports an inference that the prosecutor suppressed Brady material with respect to Pascuiti's negative identification of Landano which, in turn, calls into question the credibility of Portas' identification.

Id. at 649.

The court gave a similar analysis for the "Joseph Pasapas" identification contained in the Kearney Police Continuation Report. If the person misnamed "Joseph Pasapas" is really Joseph Pascuiti, as the State contends, then had the defense known of this identification they could have rebutted Pascuiti's redirect trial testimony to the effect that he had never selected a photograph of Forni as resembling the driver of the green Chevrolet. Alternatively, if "Joseph Pasapas" is actually Gus Lapas, the owner of a coffee truck usually parked in the area near the Hi-Way Check Cashing Service, as Landano suggests, then such testimony at trial would have directly rebutted Portas' testimony that Landano was the driver of the getaway car. The district court concluded that under either theory there was a reasonable probability that had the information been turned over to the defense, the outcome of the trial would have been different. Id. at 653. After issuing its conditional writ, the district court entered an order on July 28 denying the State's motion for both a stay of the conditional writ and for release of its files.

The State of New Jersey now appeals the district court's order granting the conditional writ. The appeal of the conditional writ (No. 89-5638) has been consolidated with the State's petition for mandamus seeking an order that all documents seized pursuant to the district court's temporary restraining order of June 8 be returned to the State (No. 89-5625), and its appeal of the district court's denial of its claims of work product privilege and confidentiality (No. 89-5504).*fn9 This Court has jurisdiction pursuant to 28 U.S.C. § 2253 (1982) and 28 U.S.C. § 1291 (1982).

II.

The first issue we confront in our consideration of the State's appeal is that of exhaustion. Title 28 U.S.C. § 2254(c) (1982) requires a habeas petitioner to exhaust available state remedies before filing an action in federal court: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Moreover, this exhaustion requirement is applicable to new claims a habeas petitioner may raise in seeking relief from a final order under Fed.R.Civ.P. 60(b).*fn10 Pitchess v. Davis, 421 U.S. 482, 489-490, 44 L. Ed. 2d 317, 95 S. Ct. 1748 (1975).

This Court has recognized that the exhaustion requirement is not jurisdictional, but arises rather from interests of comity between the state and federal systems. See, e.g., Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989). Nevertheless, we have held that the requirement should be strictly adhered to because it expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions. See, e.g., United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 95 (3d Cir. 1977), cert. denied, 435 U.S. 928, 55 L. Ed. 2d 524, 98 S. Ct. 1499 (1978). Accord Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Duckworth v. Serrano, 454 U.S. 1, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981) (per curiam). In addition, strict compliance with the exhaustion requirement properly acknowledges that state courts, no less than federal courts, are bound to safeguard the constitutional rights of state criminal defendants, Irvin v. Dowd, 359 U.S. 394, 404-05, 3 L. Ed. 2d 900, 79 S. Ct. 825 (1959); Ex parte Royall, 117 U.S. 241, 251, 29 L. Ed. 868, 6 S. Ct. 734 (1886), as well as increasing the likelihood that the factual allegations necessary for a resolution of the petitioner's constitutional claim will have been fully developed in state court, making federal habeas review more expeditious. Rose, 455 U.S. at 519.

This Court has also noted that the habeas petitioner bears the burden of proving that he has exhausted available state remedies. Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982), cert. denied, 459 U.S. 1115, 74 L. Ed. 2d 968, 103 S. Ct. 750 (1983); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982) (per curiam). To demonstrate compliance, the petitioner must show that the claim he asserts in federal court has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Ross v. Petsock, 868 F.2d 639, 641 (3d Cir. 1989). To be "fairly presented," the federal claim must be the substantial equivalent of that presented to the state courts. Picard, 404 U.S. at 278; Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986).

This Court has interpreted substantial equivalence to mean that both the legal theory and the facts on which a federal claim rests must have been presented to the state courts. Ross, 868 F.2d at 641; Bond, 864 F.2d at 309; O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987); Gibson, 805 F.2d at 138. Accord Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989); Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th Cir. 1988); Wise v. Warden, Maryland Penitentiary, 839 F.2d 1030, 1033 (4th Cir. 1988); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984) (en banc) ("In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court."). By requiring that the habeas petitioner provide the state courts with both the same legal theory and the same factual predicate underlying the constitutional argument, the federal court ensures that the same method of legal analysis that is used by the federal court in resolving the petitioner's claim was also readily available to the state court when it adjudicated the claim. Santana, 685 F.2d at 74; Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976) (in banc) (citing Stanley v. Illinois, 405 U.S. 645, 658 n.10, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (dictum)). Cf. Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982) (per curiam) ("28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim") (quoting Picard, 404 U.S. at 276-77). In addition, the habeas petitioner must exhaust his state remedies as to each of his federal claims. If a habeas corpus petition contains both exhausted and non-exhausted claims the petition must be dismissed. Rose, 455 U.S. at 510; Santana, 685 F.2d at 73.

After a complete review of the record before us, cf. Ross, 868 F.2d at 640, we find that Landano has not exhausted his state remedies as to the additional Brady claims he now has asserted in connection with his Rule 60(b) motion. Landano concedes that none of the suppression claims he previously raised in his initial habeas petition specifically included the information he now claims was suppressed, i.e., the information contained in the handwritten "ID on Landano" document and the Kearney Police Continuation Report.*fn11 Landano's previous Brady claims were based on impeachment evidence that Roth was being investigated for "underworld" connections, impeachment evidence that Roller was involved in previous robberies with Forni, evidence that ...


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