The opinion of the court was delivered by: WHIPPLE
This matter is before the Court on petition filed February 6, 1979 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court has carefully reviewed all papers submitted including, but not limited to, the numerous state appellate briefs, the transcripts of the post trial hearings, the opinions of the New Jersey Superior Court, Appellate Division, and the opinion of the New Jersey Supreme Court, State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (Sup.Ct.1979). In the absence of any factual issues to be ruled upon, no evidentiary hearing is necessary. Therefore under Fed.R.Civ.Pro. 78, this matter will be decided on the basis of the papers filed with the Court.
Petitioner (and a co-defendant) were charged in an indictment with engaging in bookmaking activities in violation of N.J.S.A. 2A:112-3. Prior to trial, petitioner moved before Judge Thomas F. Dalton to suppress tape recordings for failure of the prosecution to promptly deliver the tapes to the court for sealing, as required by N.J.S.A. 2A:156A-11, 14. The evidence adduced at the suppression hearing disclosed that the tape in question was held by the investigating authorities for the purpose of making a composite tape for use at trial. The original and composite tapes were delivered to Judge Morris Pashman for sealing some thirty-three days after the date of termination of the wiretap authorization. Judge Dalton denied the motion to suppress, holding that the failure of the law enforcement authorities to comply with N.J.S.A. 2A:156A-11, 14 was a mere "ministerial defect".
Following a trial before Judge James J. Petrella, where the wiretap evidence was admitted, petitioner was found guilty on all counts of the indictment. On July 19, 1974, Judge Thomas S. O'Brien sentenced petitioner to a term of two to four years imprisonment and a fine of $ 2,000.00.
On April 28, 1976 petitioner sought habeas corpus relief in this Court. A hearing was held, yet because of the June 22, 1976 decision in United States v. Gigante, 538 F.2d 502 (2d Cir. 1976) I allowed each side additional time to brief the procedural and substantive issues. In an unpublished opinion of July 25, 1976 I denied the requested relief because at that point it became clear the petitioner had failed to exhaust his state remedies.
A petition was then filed for post-conviction relief on the basis of the delay in sealing the tapes. On September 23, 1976 a hearing was held at which time the petition was dismissed. On October 18, 1976 a Notice of Appeal was filed in the New Jersey Superior Court, Appellate Division.
On July 25, 1977 the Appellate Division affirmed the lower court ruling by a two to one vote. On September 6, 1977 a Notice of Appeal as of Right was filed with the Supreme Court of New Jersey.
On December 8, 1977 the New Jersey Supreme Court denied cross motions for summary affirmance and reversal. Each side then briefed and orally argued the issue of the sealing delay.
On February 2, 1979 the Supreme Court of New Jersey affirmed the dismissal of the post-conviction relief petition in an unanimous opinion authored by Justice Handler. State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (Sup.Ct.1979).
Petitioner now raises three grounds for habeas corpus relief; 1) the delay in the sealing of the tapes contrary to the language of N.J.S.A. 2A:156A-14, 2) "in the interests of justice", and 3) alleged ineffective assistance of appellate counsel on direct appeal.
The issue of the sealing delay was discussed by the Supreme Court of New Jersey. It is interesting to note that the Court in Cerbo did not:
. . . subscribe to the conclusions of the majority of the Appellate Division that the provisions of N.J.S.A. 2A:156A-14 for the transfer and sealing of a completed wiretap tape were ministerial and that the failure of the investigating police officers to have turned over the completed wiretap tapes immediately to the issuing judge for such sealing was merely a technical violation of the Wiretap Act which would not justify barring their use as evidence at the criminal trial of defendants. Had defendants raised this issue in their prior appeal from their judgments of conviction, a reversal would have been warranted. Cerbo, 78 N.J. at 600, 397 A.2d at 673.
For the first time, the New Jersey Court has adopted the view expressed in United States v. Gigante, 538 F.2d 502 (2d Cir. 1976)
which followed the dissenting view of Judge Rosenn in United States v. Falcone, 505 F.2d 478, 485 (3d Cir. 1974), Cert. denied 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975). The majority decision in Falcone is still the law in the Third Circuit and elsewhere
notwithstanding the new rule announced in Cerbo, supra. The New Jersey Supreme Court's denial of petitioner's request for post-conviction relief was supported by reliance upon Alfano v. United States, 555 F.2d 1128 (2d Cir. 1977) which held that, "where extraordinary relief by writ of habeas corpus is sought, evidence of actual tampering is necessary. Id. at 1130, n.2. Habeas Corpus relief was denied in Alfano, yet the Second Circuit was careful not to disturb its prior holding in Gigante, supra. It appears that even in jurisdictions where strict compliance with sealing provisions is required, collateral attacks on convictions will not be sustained.
Similarly, in McMillan v. United States, 558 F.2d 877 (8th Cir. 1977) a habeas corpus petition was ...