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February 27, 1986

GARY HILTON, Superintendent, New Jersey State Prison, Trenton, New Jersey and IRWIN I. KIMMELMAN, Attorney General of New Jersey, Respondents

The opinion of the court was delivered by: ACKERMAN

 Petitioner Dana Braunskill, presently confined at New Jersey State Prison in Trenton, brings this pro se petition for habeas corpus under 28 U.S.C. § 2254. The issue in this case is whether it is constitutionally permissible in a state criminal prosecution for the trial judge to refuse to permit an alibi witness to testify solely because defense counsel did not respond to the state's discovery request within the time required by the state's notice of alibi rule. I hold that under the circumstances of this case, in agreement with Judge Stern in Hackett v. Mulcahy, 493 F. Supp. 1329 (D.N.J. 1980), that petitioner's sixth amendment right to call witnesses in his defense outweighs the state's interest in enforcing its notice of alibi rule and that the preclusion sanction violated petitioner's sixth amendment right. Therefore, the petition for habeas corpus relief will be granted.

 On January 30, 1981, petitioner was convicted in the Superior Court, Law Division, Essex County, New Jersey, of first degree sexual assault in violation of N.J.S.A. 2C:14-2, and fourth degree unlawful possession of a knife contrary to N.J.S.A. 2C:39-5(d). On March 26, 1981, petitioner received sentence for aggravated sexual assault charge, to run concurrently with an eighteen month sentence for the weapons charge. The Appellate Division affirmed the conviction on December 14, 1982, and the Supreme Court of New Jersey denied certification on March 2, 1983. Petitioner filed this habeas corpus application on April 26, 1985. He alleges denial of his right to call witnesses in his defense, ineffective assistance of counsel, and improper reference to his criminal history in violation of his constitutional rights.


 On June 12, 1980, Jane Lyons, a sixty-nine year old woman, exited a bus and entered the lobby of her apartment building, the Troy Towers, in Bloomfield, between 12:15 and 12:30 a.m. She obtained her mail from her mailbox in the rear of the lobby, and as she turned to walk toward the elevator, she felt an arm around her throat. Ms. Lyons told her assailant to take her money but he did not; rather, he struggled with her until he got her down on the floor. The assailant then opened his trousers and exposed himself and told Ms. Lyons that if she followed his orders, he would not hurt her. He was holding a knife near her throat which the victim attempted to push away; in so doing she cut her hands severely. Her assailant then forced her to perform fellatio on him. During this incident Ms. Lyons heard someone enter the lobby and heard a voice, but she was unable to view the person because she was facing a wall. Shortly thereafter, the assailant left. Ms. Lyons entered the elevator and went to a neighbor's apartment, where she summoned the police.

 Officer Michael Sailer of the Bloomfield Police Department was on routine vehicle patrol on June 12, 1980, when he received a radio report that an assault had occurred in the Troy Towers. Sailer and his partner proceeded to the apartment building and searched the lobby, where they found blood smeared on the floor in the vicinity of the elevator. The officer observed that the elevator control dial indicated that the elevator was on the sixth floor, so he and his partner ascended to that floor to search for the victim. The officers found Ms. Lyons, who was extremely upset and bleeding profusely from her wounds. The officers transported the victim to a local hospital for treatment.

 Ms. Lyons was unable to get a good look at the face of her attacker. She told Officer Sailer that her assailant was black, between 5'6" and 5'9" in height, of medium build, and was wearing dark clothes and a jacket.

 The defendant was identified by two witnesses. Both of these witnesses testified that the lighting conditions in the lobby where the incident occurred were very good. Josette Amabile, who also resided in Troy Towers testified that she entered the lobby shortly after midnight to retrieve her mail. She said she saw an elderly white woman against a wall on her knees and a black male who appeared to be seated or squatting. Ms. Amabile testified that she had direct eye contact with the male for approximately five seconds, at which time he groaned and covered his face with his hand. Ms. Amabile realized that something was wrong, and she ran back to the elevator.

 Joseph Scherer, also a resident of Troy Towers, stated that he entered the lobby shortly after midnight. He noticed a commotion near the elevator and observed a black man whom he identified as the defendant struggling with a white woman. Mr. Scherer picked up a heavy ashtray and was about to strike the man when the assailant told Mr. Scherer to leave or he would kill the victim. Mr. Scherer left and telephoned the police.

 Detective Donald Peters of the Bloomfield Police responded to the crime scene at 4:30 a.m. on the morning of June 12, 1980, and interviewed Mrs. Amabile. The detective showed the witness six photographs, and she identified the defendant as the assailant. At 6:00 p.m. on the same date (eighteen hours after the attack), the detective interviewed the victim, but she was only able to give him a general description of her attacker and was unable to make a photographic identification. Ms. Lyons nevertheless testified on cross-examination that she believed the defendant was the man who attacked her. Detective Peters showed the victim defendant's photograph because Peters had previously been involved in investigations concerning Mr. Braunskill which concerned sexual crimes. At approximately 8:00 p.m. on the same date, Peters interviewed Joseph Scherer. Peters showed the witness the same photo spread he had earlier shown to Amabile, and Scherer also identified defendant as the assailant.

 Detective Michael Sisco, who knew petitioner prior to June 11, 1980, testified that he saw him in dark clothing walking around Bloomfield in the direction of the Troy Towers Building, between 10:15 and 10:30 p.m. on the night in question. Detective Peters testified that he also saw Braunskill at around 11:30 that evening when he was patrolling in an unmarked vehicle. Detective Peters stated that he saw other black males dressed in dark clothing walking around Bloomfield that night, but admitted that none of these individuals were depicted in the photos shown to Ms. Lyons or other witnesses.

 Dana Braunskill testified that he was not in Troy Towers that evening, contending that it was a case of mistaken identification. He testified that he was not wearing dark clothing on that night, although his clothing might appear dark at night. The victim, who had described her assailant's clothing as dark, saw the assailant in a well-lit lobby. Defendant testified that several hours prior to midnight he visited a couple of bars and diners in Bloomfield and Orange. Except for a ride by an acquaintance from the Sixty-Five Club on Washington Street in Bloomfield to the Halftime Emporium on Broad Street in that city, defendant walked from place to place. In the course of the evening, defendant walked across the street from an underpass which leads to the Troy Towers parking lot. He further testified that he arrived at the apartment of his girlfriend, Florine Moore, with whom he was living at the time, shortly after 11:30 p.m. He stated that Ms. Moore was on the telephone when he came into the apartment. Defendant further testified that after his arrival at Ms. Moore's apartment at 219 Park Place in Orange, he did not go out again.

 Petitioner also related that on a number of occasions in the past he had been stopped by Detectives Peters and Sisco and other members of the Bloomfield Police Department who had allegedly attempted to arrest him without cause.

 The jury began deliberating at 11:55 a.m. on January 28, 1981. At 4:00 p.m. they advised the court that they were not ready to reach a verdict and were sent home. The jury resumed deliberations at 9:00 a.m. the next day. At 12:15 p.m. they asked the court whether Josette Amabile was asked whether she knew the police officers, and whether either Detective Peters or Detective Sisco testified that they were working together on the evening in question. Although these circumstances were not testified to, the judge told the jury they would have to rely on their own recollections. At 2:20 p.m. on January 29, the jury informed the court that they were unable to reach a unanimous decision. The judge instructed the jury to continue deliberating. At 3:55 p.m. the jury was sent home. On January 30, 1981, the jury began its third day of deliberations at 9:15 a.m. At 12:30 p.m. the judge called the jury into the courtroom and asked the foreman whether further deliberations would be fruitful. The foreman advised the trial judge that they would. At 3:10 p.m., the jury reached a verdict, finding defendant guilty of sexual assault and unlawful possession of a knife.

 On March 26, 1981, the court denied defendant's motion for a new trial and sentenced him to an eight-year state prison term with a four-year parole disqualifier on the sexual assault count, and a concurrent eighteen-month term on the weapon count.

 A notice of appeal was filed with the Appellate Division on May 11, 1981. In a per curiam opinion dated December 14, 1981, the Appellate Division affirmed defendant's conviction and sentence. The Appellate Division found that the trial court committed several errors, but found them to be harmless, and with respect to one issue not raised at trial, not plain error. A notice of petition and a notice of appeal were filed with the Supreme Court of New Jersey on January 3, 1983. The petition for certification was denied on March 2, 1983.

 This was a one day trial which began and ended on Tuesday, January 27, 1981. Two weeks and one day prior to trial (on Monday, January 12, 1981), petitioner's trial counsel telephoned the assistant prosecutor and informed him that a notice of alibi was going to be filed. A notice of alibi was filed and served on the Prosecutor on January 21, 1981, six days prior to trial. It listed Florine Moore and her address.

 The prosecutor argued that the alibi witnesses ought to be precluded from testifying because the notice failed to comply with the time requirement of New Jersey Court rule 3:11-1, notwithstanding the fact that the prosecutor had already interviewed Florine Moore the previous Friday.

 Defense counsel stated that his notice was out of time because there had been a long period of time between his verifying that Ms. Moore was a witness, and his actually seeing her. As Ms. Moore was no longer defendant's "girlfriend," defendant had had trouble securing her for an interview. Defense counsel stated to the court that he wanted to speak to the witness before filing the notice. Defense counsel also argued that the state's case "would not be prejudiced one iota" and that the state probably had more information than he did, since the prosecutor had already interviewed Ms. Moore.

 The trial judge not only denied the motion to add the name of Ms. Moore, but also precluded an alibi testimony. His entire ruling on the issue is as follows: "Mr. Greenspoon [defense counsel], I'm going to rule on the question of alibi that you're way out of time, I should preclude under the rules from asserting that defense through other witnesses other than the defendant [sic]. He may do so, I cannot stop him." (exhibit 9R at 7)

 The Appellate Division found that the trial judge failed to follow the direction of State v. Francis, 128 N.J. Super. 346, 350-351, 320 A.2d 173 (App. Div. 1974), with regard to determining whether the State had been disadvantaged by the late alibi notice, and if so, whether alternatives to exclusion of the witness were feasible. The Appellate Division further observed that while the trial judge failed to explore the need for and possibility of a reasonable continuance, "in a not even-handed manner, he granted the State's application to produce evidence beyond discovery supplied defendant by the State, and offered a continuance if defendant claimed to be surprised by the new material." (Exhibit 3R at Appendix 8a). The Appellate Division made no comment regarding the fact that the prosecutor had interviewed the alibi witness several days prior to trial.

 The Appellate Division found that the proposed alibi testimony would have been of "dubious value." The court gave no indication as to how it reached that conclusion. The Appellate Division held that even if the exclusion of defendant's alibi witness constituted constitutional error, it was satisfied "beyond a reasonable doubt that any such error did not affect the verdict."


 A federal court will not consider an application for a writ of habeas corpus unless it appears that the applicant has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b). Not only must the applicant have fairly presented the substance of his habeas corpus claims to the state courts for adjudication on the merits, Pitchess v. Davis, 421 U.S. 482, 488, 44 L. Ed. 2d 317, 95 S. Ct. 1748 (1975); Picard v. Connor, 404 U.S. 270, 275-76, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Swanger v. Zimmerman, 750 F.2d 291, 295-96 (3d Cir. 1984); Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 41 (3d Cir. 1984); Zicarelli v. Gray, 543 F.2d 466, 472-75 (3d Cir. 1976), but he must have availed himself of all opportunities available in the state courts to raise the questions presented in his application. 28 U.S.C. § 2254 (c); Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).

 The state argues that petitioner has not availed himself of all state remedies. It contends that even if petitioner has presented his claims to the Appellate Division and the Supreme Court of New Jersey, he still has recourse to the courts by application for post-conviction relief, pursuant to New Jersey Court Rule 3:22-1 et seq. This argument is meritless. It is well settled that once a claim has been directly appealed to the state's highest court, it will be considered exhausted even if no post conviction relief is sought. Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 41-42 (3d Cir. 1984); United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir. 1978); United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971); Morrison v. Kimmelman, 579 F. Supp. 796, 801 (D.N.J. 1984).

 The state also contends that the claims petitioner now raises, were not "fairly presented" in the state courts. It contends that if even one claim remains unexhausted, a federal court must dismiss the claim. Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). The petitioner would then have the "choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Id.

 28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with a "fair opportunity" to consider his constitutional claim. Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982); Picard v. Connor, 404 U.S. 270, 276-77, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976). Petitioner does not satisfy this requirement by merely presenting the facts necessary to support the federal claim or by presenting a "somewhat similar state-law claim." Anderson v. Harless, 459 U.S. at 6. The habeas petitioner must have fairly presented to the state courts the "substance" of his federal habeas corpus claim. Id.

 I now consider whether petitioner fairly presented the substance of his three claims to the state courts. Petitioner's first claim is that his conviction was obtained by depriving him of his sixth amendment right to call witnesses in his favor. Petitioner presented this argument both in his brief submitted to the Appellate Division (Exhibit 8R at 8) and in his petition for certification (Exhibit 3R at 7). Petitioner expressly referred to the violation of his sixth amendment right to present witnesses in his defense and cited federal precedent to support his arguments. The Appellate Division considered and rejected petitioner's Sixth Amendment argument, stating: "Even if a constitutional error involving defendant's sixth amendment right occurred, a reversal would not be mandated since we are satisfied beyond a reasonable doubt that any such error did not affect the verdict." (Exhibit 3R Appendix at 8a).

 The state acknowledges that the petitioner claimed a violation of the Sixth Amendment, but argues that "petitioner framed this claim primarily in terms of a violation of abuse of judicial discretion, pursuant to the New Jersey Court Rule 3:11-2". The state argues that petitioner did not fairly present his claim and has only stated "mere facts or grounds framed primarily in state procedural law and state case law." I disagree.

 The state correctly observes that petitioner alleged that the exclusion of his witness constituted abuse of the trial judge's discretion in applying New Jersey Court Rule 3:11-2. However, this was a claim separate from and in addition to petitioner's constitutional claim. Petitioner's point heading in his brief to the Appellate Division made this clear. He argued: "The trial court's exclusion of the defendant's alibi witness constituted an abuse of discretion and violated the defendant's sixth amendment right to present witnesses in his defense." (exhibit 8R at 1, emphasis added). Petitioner asserted an alternate state-law ground for the court to consider but also fairly presented his federal constitutional claims.

 The state's citation of numerous cases in which non-exhaustion is found is not persuasive. None of them apply to this case where the state court was presented with both a federal and state law claim. Anderson v. Harless, 459 U.S. 4, 7, n.4, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982) (citation to a state court decision predicated solely on state law ordinarily not sufficient to apprise a reviewing court of a potential federal claim); Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (prisoner acknowledged non-exhaustion of two of his federal claims. "A district court must dismiss such mixed petitions."); Mabry v. Klimas, 448 U.S. 444, 65 L. Ed. 2d 897, 100 S. Ct. 2755 (1980) (state's highest court must be given an opportunity to consider petitioner's claim to right to be resentenced under new recidivist statute, even though petitioner had exhausted other claims related to alleged sentencing errors.); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982) (Miranda waiver issue was distinguishable from involuntariness claim and was not fairly presented in the state court); Zicarelli v. Gray, 543 F.2d 466, 474 (3d Cir. 1976) (mere reference by defendant's counsel to an opinion containing a constitutional claim did not fairly present the cross-section issue to the state courts).

 I find that petitioner's claim of ineffective assistance of counsel in violation of the Sixth Amendment was fairly presented to the state courts. See Exhibit 3R at 16; Exhibit 8R at 29. The government does not dispute this finding.

 Petitioner's final claim is that his conviction was obtained by improper reference to his probationary status and to prior arrests depriving him of a fair trial. The government argues that this claim is not cognizable on a habeas corpus petitioner. I disagree.

 Mindful that complaints are to be liberally construed in the federal courts especially when a party is proceeding pro se, Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1971), I find that petitioner's habeas petition can reasonably be understood to raise a due process claim under the Fourteenth Amendment. Petitioner's failure to use specific constitutional language is not fatal for purposes of exhaustion. The Court in Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971) stated that "we do not imply that respondent could have raised the [constitutional] claim only by citing 'book and verse on the federal constitution.'. . . We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts."

 A determination of whether the substance of the petitioner's claim was advanced in the state proceedings requires "a searching scrutiny by the federal habeas court of the points that were raised in the state tribunals, in order to ensure that the state system was granted a fair opportunity to confront arguments that are propounded to the federal habeas courts." Zicarelli v. Gray, supra. In order to determine whether the "same claim" or the "subsequent equivalent" of the claim has been previously presented to the state courts, it is necessary to ask whether the "method of analysis" asserted in the federal courts was readily available to the state court. Id. The "method of analysis" is to determine whether the evidentiary errors of the improper references to petitioner's prior arrests and his probationary status were "fundamentally unfair." See Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).

 In his brief to the Appellate Division, petitioner framed his claim of improper reference to his prior arrests and his probationary status in terms of "reversible error" and cited only state law (exhibit 8R at 17). Nevertheless, petitioner argued that the error deprived him of a "fair trial" (Id. at 17) and violated his "fundamental rights." (Id. at 23). The government also viewed the claim as a question of whether defendant received a "fair trial." (State Appellate brief at 12). The Appellate Division also considered the fairness of admitting the evidence, stating: "We do not regard any ...

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