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November 5, 1979

Juan P. RAMOS, Petitioner,
Richard A. SEIDL, Acting Superintendent of the New Jersey State Prison at Leesburg, Respondent.

The opinion of the court was delivered by: LACEY

Petitioner in this habeas corpus action, 28 U.S.C. ยง 2254, is confined at the New Jersey State Prison in Leesburg where he is serving a 10-to-12-year sentence for robbery. N.J.S.A. 2A:151-5. He was also convicted of armed robbery, for which he is serving a 2-to-3-year sentence concurrent with the robbery sentence, and kidnapping, for which he received a suspended sentence of 30 to 35 years. N.J.S.A. 2A:141-1; N.J.S.A. 2A:118-1. *fn1"

On appeal the Appellate Division of the Superior Court set aside the conviction for receiving stolen goods but affirmed the convictions on the remaining counts. The New Jersey Supreme Court denied certification. The petitioner has filed no other appeals or applications, save for the petition in this court.

 To support the petitioner's contention that he is being held in custody in violation of the United States Constitution, he urges: (1) prosecutorial misconduct denied him a fair trial; (2) his right not to be a witness against himself was violated; and (3) his right to seek counsel was violated. Each of these claims was properly raised in the state courts, so the requirement of exhaustion of state remedies has been met.

 Though the petitioner presents three grounds for finding his conviction to have been secured unconstitutionally, all stem from a single aspect of the trial the prosecution's attempt to impeach the defendant's credibility. Whether the prosecution's effort at impeachment violated the petitioner's constitutional rights can be determined only in the context of the trial as a whole.

 Essentially, the outcome of the case hinged on a credibility determination by the jury. The State's theory was that the petitioner had planned and arranged the hijacking of a truck. Two participants in the crime testified in direct support of this theory. Though other prosecution witnesses testified, the State's only evidence linking the petitioner to the crime came from the two participants.

 James Burr was the first witness to implicate the petitioner. According to Burr, the petitioner masterminded the hijacking. Burr, who described the planning and committing of the crime in detail, had pleaded guilty to participating in the hijacking. On direct examination he testified that in return for the guilty plea he was informed that the State would recommend that his sentence not exceed 30 years, *fn2" that a charge involving counterfeit currency would be dropped (4 Tr. 71), and that after the petitioner's trial was concluded the State would speak to the sentencing judge. (4 Tr. 73). Burr had one previous conviction a 1970 conviction for robbery for which he received a sentence of 5 to 7 years. (4 Tr. 74). On cross-examination Burr testified that he had faced a possibility of 55 years in prison for the crimes to which he pleaded guilty (5 Tr. 30); he also stated that as part of the plea bargain the prosecutor would advise the sentencing judge of the "quality and the quantity of my testimony." (4 Tr. 34). Burr also admitted that he hoped to benefit himself through the testimony he gave at the trial. (5 Tr. 36).

 The second witness linking the petitioner to the hijacking was Dannie Mobley. He, too, testified that the petitioner conceived the plan to hijack the truck. Mobley had pleaded guilty to three counts arising out of the hijacking; unlike Burr, however, he had not yet been sentenced. (7 Tr. 17). It was his testimony both on direct and on cross-examination that no promises had been made with respect to his sentence and that he expected nothing in return for his guilty plea. (Id.; 7 Tr. 45). At the time of his testimony Mobley also faced robbery, kidnapping, assault and conspiracy charges in Monmouth County. He had pleaded not guilty to those charges (7 Tr. 17), and, in any event, expected no leniency for those crimes. (7 Tr. 18, 48).

 Six witnesses testified for the defense. The first three witnesses a businessman, a priest, and a minister testified favorably concerning the petitioner's reputation for veracity and being a law-abiding citizen. Eusebio Medena, testifying for the petitioner, asserted that Dannie Mobley had known the petitioner for many years. (8 Tr. 57). This testimony was introduced in an attempt to attack the credibility of Mobley, who had said that he had known the petitioner for only a month when the crime occurred. (7 Tr. 55). Juan Ramos, the petitioner's son, testified that he had known Mobley for at least four years. (8 Tr. 63).

 The final defense witness was the petitioner. He testified that Mobley first worked for him nearly six years ago. (8 Tr. 70). Emphatically and repeatedly the petitioner denied any involvement in the hijacking. (8 Tr. 85-88).

 Cross-examination by the prosecution then began. Much of the questioning focused on events after the petitioner had been arrested. For example, the prosecutor asked the petitioner if he had told a police officer he had friends "downtown." (8 Tr. 100). The petitioner remembered making such a statement, but he tried to give the phrase a different meaning than the one suggested by the prosecutor. (8 Tr. 101). Defense counsel then objected to the entire line of questioning on the ground that no evidence should be offered on events transpiring after the crime. (8 Tr. 103). The objection was overruled.

 Continuing this line of inquiry, the prosecutor asked the petitioner about whether he had refused to cooperate with the Newark police and whether he had asked for an attorney the day of his arrest. When the petitioner denied acting uncooperatively, the prosecutor told the court he intended to have Officer McDonald testify on that issue and whether the petitioner had made a statement about friends "downtown." (8 Tr. 109). The prosecutor, after eliciting from the petitioner a reaffirmation that he had requested an attorney the day of his arrest, then asked if he had been read a form containing his rights. (8 Tr. 113).

Q Did they read you at any time a form about your rights?
A Not that I remember. They just tell me we got this here this and this. That four papers sign your name here and I said I can't sign my name without my lawyer.
Q And did they read you your rights from a form?
A If they did he was so mad at me I don't remember exactly, no.
Q You don't remember. *fn3" . . .
Q I show you these four pieces of paper, did they read you your rights from these pieces of paper ...

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