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December 22, 1987

Vincent James Landano, Petitioner,
John J. Rafferty, et al., Respondents

H. Lee Sarokin, U.S.D.J.

The opinion of the court was delivered by: SAROKIN

On September 29, 1987, this court denied petitioner Vincent James Landano's application for a writ of habeas corpus. Landano v. Rafferty, 670 F. Supp. 570 (D.N.J. 1987). While expressing its "fears that a great injustice has occurred," 670 F. Supp. at 572, and "candidly admit[ting] an exhaustive search for grounds to grant the writ," id., the court perceived that its "obligation . . . to defer to the factual findings of the state court [made] it impossible to grant the relief sought." Id.

 Petitioner has now moved for reconsideration of the September 29 opinion and order. The court has thoroughly reexamined this matter and concludes that it must deny the petitioner's motion for reconsideration, reiterating the same misgivings expressed in the court's earlier opinion.


 There is no need for a recounting of the facts which led up to petitioner's conviction in May of 1977 on various charges arising out of the murder of a Newark police officer. Those facts, together with descriptions of the evidence presented at petitioner's trial and at the post-trial recantation hearing, and the arguments presented to this court on habeas review, are set out in full in the court's September 29 opinion. 670 F. Supp. at 572-80, 584-85, 586-87. The court therefore mentions only those facts and arguments which are germane to the motion for reconsideration.

 On September 1, 1982, petitioner moved before the state court for an order permitting discovery in preparation for the recantation hearing of Raymond Portas. Specifically, petitioner moved for disclosure and inspection of, among other things,

(i) all files and documents that might contain reference to police or prosecutorial interviews of . . . Raymond Portas undertaken during the investigation of the murder of Police Officer John Snow; (ii) all photographic displays shown Raymond Portas during the aforesaid investigation; (iii) all diaries, logs, or memoranda reflecting or recording Raymond Portas' visit to the Hudson County Prosecutor's office on or about April 15, 1977.

 In a short letter, the state court denied petitioner's discovery request on September 27, 1982.

 On April 13, 1987, this court entered an order granting petitioner discovery of "all files maintained in the matter of State v. Vincent Landano by the office of the Attorney General of the State of New Jersey and the office of the Hudson County Prosecutor," as well as all documents concerning the photographic identification procedures used by investigators with Raymond Portas on April 15, 1977. That discovery produced the following new evidence: (1) a "Property and Evidence Report" indicating that two photographs of Victor Forni and several photo arrays were removed from the prosecutor's vault on April 15, 1987, the same day that Portas was asked to choose the driver of the getaway car from a photo array; (2) a manila folder in the Landano file that contained a photo display including Forni's picture but not Landano's; and (3) a statement by Michael D'Andrea, an investigator from the prosecutor's office who had not worked on the original investigation of the Landano case, that the manila folder had been shown to "a truck driver" during the Landano investigation. *fn1" The state also disclosed a new piece of evidence: it claimed that two photos, until then inexplicably missing from the S-2 photo display which was shown to Portas on April 15, 1977, had been discovered in the S-1 display. Neither of the two photos was of Forni or Landano.

 In essence petitioner now contends that this evidence, all corroborative of the credibility of Portas' recantation, was unavailable to the petitioner in the state court recantation proceeding and was thus not considered by the state court in deciding petitioner's application for a new trial. As a result, petitioner contends that this court should disregard the state court's factual findings and rely instead on its own finding that Portas' recantation is credible.


 A. 28 U.S.C. § 2254(d)

 When a district court exercises its discretion to hold a hearing on a state prisoner's habeas corpus application, 28 U.S.C. § 2254(d) dictates the burdens of proof at its hearing. Under that statute,

a determination after hearing on the merits of a factual issue, made by a State court . . ., shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit -- . . . (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; . . . ...

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