An expert in questioned documents testified that he had examined (a) the letters identified as petitioner's by his wife, using these as exemplars, and (b) the questioned document, the letter produced by Kia Grasty. It was his opinion that the letters identified by Mrs. Herring were all written by the same person, and that the questioned letter was definitely written by someone else. In his opinion, after some uncertain responses, the questioned letter was written by a female.
Petitioner sought at this point to have Kia Grasty required to provide exemplars of her handwriting, which request was denied. He also sought to have the authenticated letters, used as petitioner's exemplars, introduced in evidence and provided to the jury. This request was also denied.
What the jury was provided was excerpts from the authenticated letters and the questioned letter. The full letters did not go to the jury out of concern that it might be influenced by the tenor of the letters rather than limiting their consideration to the handwriting issue.
This issue, in its subdivisions, does not raise a matter of constitutional magnitude.
Traditionally, experts in questioned documents prefer to work with undeniable standards, usually prepared by the subject in his presence or in the presence of someone skilled in the securing of reliable exemplars in ways that tend to reduce the risk of altered handwriting. These samples are commonly taken by having the subject write out each letter of the alphabet, in capitals and in lower case, in script and in block printing, often with the repeated copying of brief sentences that contain all the letters of the alphabet (as: "The quick brown fox jumps over the lazy dog,"). Also, the subject is asked to write out a number of times, on separate slips of paper, selected words or phrases taken from the questioned document.
No doubt, this was not done for petitioner's exemplars, though it could have been without waiver of his 5th Amendment rights. Instead, a decision was made (for whatever reason) to use letters that petitioner's wife could identify as his handwriting. It may have been in the hope that the letters would go to the jury in toto, which they did not.
The fact is that petitioner was able to produce evidence through his wife and through the expert, that he was not the one who wrote the letter Kia Grasty produced. This was adequate to make the desired point, and it was well within the trial judge's discretion not to delay the trial further with arrangements to have exemplars provided by Kia Grasty.
The point at issue was whether or not petitioner wrote the letter she said she had received, and the evidence adduced was sufficient to the need, going as it did to her credibility, already open to attack, without exploring still a different inquiry, namely whether Kia Grasty herself wrote the questioned letter. A defense expert's opinion that she had, if the area were explored, would have called for further study and testimony by a State's expert, and probably would have called for the providing of exemplars by Mrs. Herring, to see whether or not she was the writer.
The denial of the request to obtain exemplars of Kia Grasty's writing, and the restriction of the letters to samples or excerpts that did not disclose the tenor of the letters, did not deprive petitioner of a full and fair opportunity to question Kia Grasty's credibility in respect to the letter, which was not even part of her direct testimony but came up in the course of cross-examination.
For these reasons, the third issue provides no basis for the granting of the writ of habeas corpus.
It was noted at the outset of this ruling that the first ground advanced was the only federal issue cognizable here. The reason for this, aside from the discussion above, is that petitioner failed to exhaust available remedies in his direct review of the conviction.
Under 28 U.S.C. § 2254(a), applications to this court for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court may be entertained "only" on the ground that he is in custody "in violation of the Constitution or laws or treaties of the United States."
Subsections (b) and (c) require the exhaustion of remedies available in the courts of the State before a federal court can be called upon to consider the question raised.
Under New Jersey's present constitution, adopted in 1947 and effective September 15, 1948 for its Judicial Article VI, a new court structure was established. Under that structure, there is contemplated one appeal as of right to a court of general appellate jurisdiction, and such appeal is usually afforded in the Appellate Division of the Superior Court. Further review by the Supreme Court, the highest court of the State, is usually allowed only in the exercise of that court's discretion by granting a petition for certification, but if the case comes within one of the limited number of situations specified, then a further appeal to the Supreme Court may be taken as of right. Midler v. Heinowitz, 10 N.J. 123, 89 A.2d 458 (1952). See, also, Starego v. Soboliski, 11 N.J. 29, 93 A.2d 169 (1952); State v. Pometti, 12 N.J. 446, 97 A.2d 399 (1953).
There is express provision in the 1947 Constitution for a second appeal, as of right, to the Supreme Court "in causes determined by the Appellate Division of the Superior Court involving a question arising under the Constitution of the United States or this State", Art. 6, sec. 5, par. 1(a), separate and apart from the discretionary review by certification under subparagraph (d) of the same section and paragraph.
Since habeas may be sought here "only" on the ground that petitioner's custody is in violation of the Constitution or laws or treaties of the United States, it is plain that there is complete identity between a second appeal of right to the Supreme Court of New Jersey and the grounds that may be asserted here. There is no significance to the variation of phrasing because any claim arising "under" the federal constitution necessarily embraces all laws and treaties in pursuance thereof or under its authority, by reason of the Supremacy Clause, U.S.Const., Art. VI, cl. 2.
Thus, for New Jersey, a petitioner here cannot be said to have exhausted available State remedies where he has failed to take an appeal of right to the Supreme Court of that State.
At one time, this course carried some risks, but these risks were eliminated as far back as 1953. The original Rules, adopted to take effect September 15, 1948, contained a provision requiring a party seeking discretionary review by certification to expressly waive any appeal that he may have had of right. See N.J. Court Rule 1:5-5(d) (1948).
In a given case, a defendant convicted after trial may have available for presentation on direct review a number of issues, some involving grounds arising under the U.S. Constitution, and others not. One example among many is found in Paullet v. Howard, 634 F.2d 117 (CA3, 1980), where the court observed, at p. 119 (point (7) ), that a particular argument "was presented to the Superior Court of Pennsylvania as reversible trial error, not as a constitutional violation."
Thus, as of 1948, a convicted defendant with both federal grounds and non-federal grounds, having had his conviction affirmed on direct appeal by the Appellate Division of Superior Court, and desiring further review, would be faced with the dilemma of taking a second direct appeal as of right to the Supreme Court on the federal grounds only, or whether to seek discretionary review by certification, on all grounds, but at the expense of waiving his appeal of right.
The dilemma was often a difficult one to resolve, at best, since counsel's evaluation of the relative strength of the constitutional claims as compared with non-constitutional claims, is always accompanied by considerable uncertainty.
The dilemma was resolved by the 1953 Revision of the N.J. Court Rules. That formulation eliminated the requirement to waive the right of appeal as a condition to seeking discretionary review by certification. In its place, it was provided in N.J. Court Rule R.R. 1:10-4(e) (1953) that:
"e. Where certification is sought to review a judgment or order of the Appellate Division, and it appears that the petitioner was entitled to an appeal as of right, certification shall be granted. An application for certification shall not constitute a waiver of any right of appeal the petitioner may have."
The current provision is somewhat different, and was promulgated as N.J. Court Rule R. 2:12-9 as part of the 1969 revision. It reads:
"Where a party seeks certification to review a final judgment of the Appellate Division, and also appeals therefrom, he shall state in the petition for certification all questions he intends to raise on the appeal. The denial of certification shall be deemed to be a summary dismissal of the appeal, and the Clerk of the Supreme Court shall forthwith enter an order dismissing the appeal, unless the Supreme Court otherwise orders." (Emphasis added).
This current provision makes it explicit that after an adverse judgment in the Appellate Division, not only is there no dilemma but the party seeking further review may file both a notice of appeal and a notice of petition for certification. The requirement to identify in the petition the questions intended to be raised on the appeal is necessary because of the different mechanisms that apply to the two modes of review.
Both modes begin with a notice: a notice of appeal (N.J. Court Rule R. 2:5-1(a) ), or a notice of petition for certification (N.J. Court Rule R. 2:12-3(a) ).
The basis for the review in each case does not appear from the notice, but from the brief (or the petition), which is filed later: the brief on appeal is to include the point headings to be argued (N.J. Court Rule R. 2:6-2(a)(1) and (5) ), while a petition for certification, which is in the form of a brief, is to contain, among other things, the question presented, the error complained of, and the reasons why certification should be granted (N.J. Court Rule R. 2:12-7(a) ) and, where there is both a notice of appeal and a notice of petition, "all questions he intends to raise on the appeal" (N.J. Court Rule R. 2:12-9).
The petition (brief) for certification must be filed within 10 days after the filing of the notice of petition (N.J. Court Rule R. 2:12-7(b) ), while the brief on appeal need not be filed until 45 days after the notice (N.J. Court Rule R. 2:6-11(a) ).
Thus, when there is both a notice of appeal (of right) and a notice of petition for certification (discretionary), the Supreme Court would not know, when the petition (brief) for certification is filed what issues are to be raised by the appeal since the brief on appeal is not yet due. It is for this reason that R. 2:12-9 requires in such cases that the questions intended to be raised on the appeal be stated (but not argued) in the petition for certification.
The federal law on habeas under 28 U.S.C. § 2254 contemplates not a mere passage through the state courts, but that the federal claim be "fairly presented" to those courts, who are to have the first opportunity to hear the same claim sought to be vindicated in the federal courts. Picard v. Connor, 404 U.S. 270 at 275, 92 S. Ct. 509, at 512, 30 L. Ed. 2d 438 (1971). The claim brought here must be the "substantial equivalent", or the "substance of" the claim already presented in the state courts. Idem, 404 U.S. at 278, 92 S. Ct. at 513. See also, Mabry v. Klimas, 448 U.S. 444, 100 S. Ct. 2755, 65 L. Ed. 2d 897 (1980).
In Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68 L. Ed. 2d 392 (1981), the Supreme Court considered the substantially similar question in connection with a petition for certiorari to the Supreme Court of Georgia. It concluded that it lacked jurisdiction because 28 U.S.C. § 1257 requires that the petitioner shall have, in the state court, "specially set up or claimed under the Constitution", the right sought to be enforced on the certiorari, and only state law claims had been presented. The underlying policy of comity was the same as is under discussion here in view of the court's direct reference to Picard v. Connor, supra.
Even more recently, in Duckworth v. Serrano, 454 U.S. 1, 102 S. Ct. 18, 70 L. Ed. 2d 1 (1981), the court rejected the reasoning of the Court of Appeals for the Seventh Circuit in attempting to carve out an exception to the exhaustion requirement in cases where the matter raised was a "clear violation" of constitutional rights, and "in the interest of judicial economy" there was no reason to await the state court's consideration of the issue. That case, like this one, was a § 2254 habeas case in which the District Court dismissed the petition and the Court of Appeals, where the point relied on was raised for the first time, reversed.
Significantly, the Supreme Court did not choose to rule on the propriety of raising a question in the Court of Appeals that had not been raised in the District Court, but instead put its ruling squarely on the requirement for exhaustion, to which it refused to allow the exception.
In the New Jersey context and in the context of this case, it is plain that the basis for appeal of right to the highest court of the state dovetails exactly with the only kinds of questions that can be raised under § 2254, namely federal constitutional questions.
Thus, a petitioner here who has filed only a notice of and petition for certification, and has not filed a notice of appeal, of right, has neither exhausted his available state remedies nor fairly presented the same question to the state courts.
The reason for this should be obvious: when there is an appeal of right on a federal constitutional question, the Supreme Court of New Jersey has no discretion to decline to hear it. It is obliged to hear and decide it on the merits, by reason of N.J.Const.1947, Art. 6, sec. 5, par. 1(a), quoted above. Neither the Legislature, by statute, nor the Supreme Court, by "rule of practice and procedure", can deny or degrade that State constitutional right.
The record produced here shows that the petition for certification made no mention of any questions intended to be raised on an appeal, nor was there any notice of appeal. Only the first point listed, the claim based on alleged failure to provide Kia Grasty's criminal record refers to any federal constitutional matter, and is the only point citing any federal decisions.
All other points were identified and argued as matters of state law only, with no reference to or suggestion that any federal constitutional right was involved.
Given the dual and complementary modes available in New Jersey for direct review by its highest court, and given that questions arising under the federal constitution assure an appeal of right, it cannot be said that available state remedies have been exhausted when only discretionary review was applied for.
Since this subject, which is independent of the rulings on the merits of each ground presented here, was not addressed in the briefs of the parties, no order will be entered until petitioner has had the usual 14 day period within which to file a motion for reconsideration. In that event, the court will set a schedule for the filing of briefs on the point.