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Hochman v. Rafferty

argued: March 17, 1987.


On Appeal from the United States District Court for the District of New Jersey-Newark (D.C. Civil Action No. 85-1965).

Higginbotham, Mansmann and Rosenn, Circuit Judges.

Author: Higginbotham



This appeal concerns a prosecutor's constitutional duty to present known exculpatory evidence to a grand jury. Because the prosecutor's conduct before the grand jury that indicted appellants did not breach the requirements of the due process clause, we will affirm the district court's denial of appellants' petition for a writ of habeas corpus.


Martin Salerno was killed, by two gunshots to the head, while sitting in his van on Eastern Parkway in Jersey City, New Jersey, on July 11, 1974. Later that year, a grand jury was convened in Hudson County, New Jersey, to investigate Salerno's murder. On December 9, 1974, the grand jury considered a report of an autopsy performed upon Salerno's body and heard testimony from eight witnesses to various incidents surrounding the murder. See Appellants' Appendix ("App.") at 80a-182a (transcript of grand jury proceedings). The grand jury subsequently indicted one Stanley Ward for the murder of Martin Salerno.

Ward subsequently pled guilty to the crime. Thereafter, on May 3 and 13, 1977, Ward gave statements to members of the Hudson County Prosecutor's Office that implicated appellants Richard W. Hochman and Harvey George in the Salerno killing. See App. at 200a-24a (transcripts of Ward's statements). Ward claimed, in essence, that although he had been hired by appellants to kill Salerno and was in Salerno's van when the murder occurred, George had actually been the triggerman. A second grand jury was then convened to investigate the involvement of Hochman and George in Salerno's murder. On May 17, 1977, Ward testified before the second grand jury. See App. at 183a-99a (transcript of grand jury proceedings). On the basis of Ward's testimony and a coroner's report, this grand jury on June 7, 1977, filed an indictment charging Hochman and George with seven and eight criminal courts, respectively, relating to Salerno's murder. See App. at 3a-6a (indictments).

Appellants each pled not guilty to the charges: Hochman on July 11, 1977, and George on September 29, 1977. Months later, on January 23, 1978, Hochman filed a pretrial motion to dismiss his indictment. This motion raised the constitutional claim that is the subject of the habeas petition now before this Court. George joined Hochman's motion at a hearing on January 30, 1978, the day their joint trial had been scheduled to begin. After hearing oral argument on this motion, New Jersey Superior Court Judge Thomas S. O'Brien refused to dismiss the indictments.

Appellants' jury trial commenced on February 1, 1978. The jury thereafter convicted each appellant of murder, of aiding and abetting the other in murder, and of conspiracy. The trial court ultimately sentenced appellants to terms of life imprisonment on their murder convictions*fn1; on the conspiracy counts, each received a sentence of three to five years, to run concurrently with the life term on the murder count.*fn2 On direct appeal, where Hochman and George pressed the constitutional claim that is raised in this habeas petition, the murder and conspiracy convictions were summarily affirmed by New Jersey's Appellate Division. State v. George, No. A-3460-77 (N.J. Super. Ct. App. Div. Jan. 18, 1980) (per curiam). The Supreme Court of New Jersey subsequently denied appellants' petition for certification. State v. George, 84 N.J. 419, 420 A.2d 332 (1980).

On February 15, 1985, Hochman and George filed a petition for post-conviction relief in the Superior Court of New Jersey.*fn3 They alleged therein that their fifth amendments rights to an "informed grand jury" were violated when the prosecutor withheld exculpatory evidence. The Superior Court found these arguments to be "totally specious and so utterly lacking in merit as to strongly suggest that they were made in bad faith." State v. Hochman, Indictment No. 922-76, unpublished letter op. at 2 (N.J. Super. Ct. Feb. 22, 1985). It also noted that this finding was "bolstered" by its application of New Jersey Rule 3:22-5*fn4; because this claim had been raised and rejected at the pretrial hearing on appellants' motion to dismiss their indictments, was rejected as "clearly without merit" on their direct appeal to the Appellate Division, and was contained in their petition for certification that was denied by the New Jersey Supreme Court, the Superior Court held that "reconsideration of this issue was clearly barred" by the rule. Id. We find that by this point in time, Hochman and George certainly had exhausted their available state remedies for this alleged constitutional error.*fn5 See generally Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir. 1986) (affirming dismissal of habeas available state remedies); Swanger v. Zimmerman, 750 F.2d 291, 296 n.8 (3d Cir. 1984) (federal courts "need only conclude that the claims were fairly presented to the state courts in order to determine that there was exhaustion of state remedies") (original emphasis); Beaty v. Patton, 700 F.2d 110, 112 (3d Cir. 1983) (per curiam) (federal courts need not "dismiss for failure to exhaust when there is, realistically, no state remedy left for the prisoner to pursue"); Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982) ("Unless it would be patently futile to do so, [state prisoners] must seek relief in state court before filing a federal habeas petition . . . ."), cert. denied, 459 U.S. 1115, 74 L. Ed. 2d 968, 103 S. Ct. 750 (1983).

This federal habeas petition, filed on April 23, 1985,*fn6 was denied by the district court on November 29, 1985. The district court thereafter denied appellants' request for a certificate of probable cause, but granted them leave to proceed in forma pauperis on appeal. On May 16, 1986, we granted appellants' motion for issuance of a certificate of probable cause for appeal and appointed the Office of the Federal Public Defender for the District of New Jersey to represent Hochman and George on appeal.


We begin our analysis by examining appellees' contention that Hochman and George are barred by their failure to comply with New Jersey's applicable procedural rules from challenging in federal court the constitutionality of their indictments. Appellees' argument refers to New Jersey Court Rule 3:10-2, which requires all objections based upon defects in a criminal indictment to be raised prior to trial.*fn7 The argument also refers to Rule 3:10-5, which further provides that such objections must be made within thirty days of a criminal defendant's initial plea.*fn8 Hochman and George concede that they did not move to dismiss their indictments, alleging that the prosecutor unconstitutionally failed to present exculpatory evidence to the grand jury that indicted them, until January 23, 1978,*fn9 notwithstanding their arraignments and not guilty pleas on July 11, 1977, and September 29, 1977, respectively. See Appellants' Reply Brief at 2. Appellees accordingly argue ...

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