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 error that may have been committed by the trial judge to have been clearly capable of producing an unjust result." (Exhibit 3R at 9a) (emphasis added).
In making this determination, it can be fairly concluded that the state courts implicitly held that petitioner's right to due process of law was not violated. Petitioner's "broadly alleged constitutional argument, together with the repeated assertion that he was denied a fair trial, is enough to satisfy the exhaustion requirement." Bisaccia v. Attorney General of State of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied, 449 U.S. 1042, 66 L. Ed. 2d 504, 101 S. Ct. 622 (1980). "While the Appellate Division did not cite to the Fourteenth Amendment in its [opinion], its 'method of analysis' was consistent and synonymous with the classic findings required for Fourteenth Amendment violations." Id. at 310. Cf. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.), cert. denied, 459 U.S. 1115, 74 L. Ed. 2d 968, 103 S. Ct. 750 (1982) (no exhaustion when petitioner did not present the right-to-testify argument in constitutional terms but in terms of the trial court's abuse of judicial discretion); Paullet v. Howard, 634 F.2d 117, 119 (3d Cir. 1980) (no exhaustion where prosecutor's opening remarks presented to state courts as reversible error not as a constitutional violation).
The teaching of Bisaccia, supra, is applicable to this case. There the court stated "because the substance of the appellant's state claim is virtually indistinguishable from the due process allegation now before the federal court, and because the method of analysis is indistinct, the Picard test for exhaustion of state remedies has been met. This conclusion is especially appropriate because of the necessarily vague nature of a due process allegation. Failure to invoke the Due Process Clause more specifically should not therefore stand in the appellant's path to habeas relief, especially since the state courts understood and considered the 'substantial equivalent' of the appellant's claims before this court and the court below." Bisaccia, at 312.
SCOPE OF REVIEW
"It has long been established, as to constitutional issues which may properly be raised under § 2254, that even a single federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question." Sumner v. Mata, 449 U.S. 539, 543-44, 101 S. Ct. 764, 767, 66 L. Ed. 2d 722 (1981).
However, under 28 U.S.C. § 2254(d), a state court factual finding is entitled to a "presumption of correctness" in a federal habeas corpus proceeding unless one of eight enumerated exceptions apply. Subsection (d) reads as follows:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit --
(1) that the merits of the factual dispute were not resolved in the State court hearing;