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WHEELER v. NIEVES

April 9, 1991

CARTHEL WHEELER, PLAINTIFF,
v.
AMALIO NIEVES, JR. AND RONALD HUMPHREY, DEFENDANTS.



The opinion of the court was delivered by: Lechner, District Judge.

OPINION

This is an action brought pro se by Southern State Correctional Facility inmate Carthel Wheeler ("Wheeler") against Amalio Nieves, Jr. ("Nieves") and Ronald Humphrey ("Humphrey"), his arresting officers (collectively, the "Defendants"), arising out of events leading up to his arrest and occurring at trial. While Wheeler does not state the basis for jurisdiction, it appears the claims are brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983.*fn1 Jurisdiction appears to be appropriate pursuant to 28 U.S.C. § 1331.

Nieves moves to dismiss the complaint on the ground that 28 U.S.C. § 1257(3) deprives this court of jurisdiction over the action. In addition, Nieves moves to dismiss the complaint under principles of res judicata and collateral estoppel.*fn2 For the reasons which follow, the motion is granted. In addition, the complaint against Humphrey is dismissed sua sponte.

Facts*fn3

The complaint of Wheeler appears to be based on alleged constitutional violations arising out of both the conduct of Nieves and Humphrey leading up to Wheeler's arrest and the testimony of Nieves at Wheeler's trial.

Wheeler alleges he was convicted by a jury on 1 October 1986 of one count of conspiracy, two counts of possession of "CDS" and "[two] counts of CDS," and "was sentenced to 12 years with a minimum term of 5 years." Complaint at ¶ 26. His complaint states the convictions are "under appeal awaiting to be heard in Superior Court of New Jersey, Appellate Division, docket number A-3361-86-T4." Id. at ¶ 26.*fn4

Wheeler alleges that at his trial on 30 September 1986, Nieves testified that Wheeler and "John Doe," apparently an unindicted co-conspirator, conspired on 11 March 1986 to sell Nieves $20 of white powdered cocaine. Id. at ¶¶ 3-4. Wheeler contends Nieves testified: he met Wheeler at 9:00 p.m. at the J.T. Bar on Summer Street in Paterson, New Jersey; he left the J.T. Bar at 9:15 p.m. and met Wheeler and John Doe at a corner approximately fifty feet away from the J.T. Bar, id. at ¶¶ 4-6; John Doe handed him four vials of cocaine as Wheeler said to John Doe, "Go ahead, give it to him," id. at ¶ 7; he then handed John Doe a twenty dollar bill, id. at ¶ 6; and after purchasing the cocaine from John Doe and Wheeler, he contacted Humphrey, his back-up, by radio and gave him a description of John Doe and Wheeler. Id. at ¶ 10. Wheeler alleges: "Humphrey and a companion [then] got out of their vehicle and made [Wheeler] drop his pants to his knees and searched him on the `public street' with another individual named Lewis Goodwin." Id. at ¶ 13. Wheeler alleges "there were [sic] no arrest nor was [Wheeler] taken to police headquarters for questioning or photograph." Id. at ¶ 14. Wheeler further alleges:

  Subsequently, Defendant Humphrey went to Paterson
  Police Headquarters . . . and pulled a photo of
  [Wheeler] out of files from June of 1983,
  pertaining to [Wheeler's] prior conviction for
  narcotics violation. . . . Humphrey handed this
  photo over to Detective Roy Daniels, who witnessed
  the photo being put into (1) five photo line-up
  for Defendant Nieves to review, and made out this
  report on April 9, 1986, almost a month after the
  alleged crime.

Id. at ¶¶ 16-18. Wheeler then alleges: "This photo line-up was ruled overly suggestive in Superior Court because of [Wheeler] being the only black male with two (2) punch holes (taken out of file), clean shaven, and under 66 inches tall." Id. at ¶ 19.

Wheeler alleges Nieves later recanted his testimony, instead testifying that he did not meet Wheeler at the J.T. Bar and that the crime occurred at 10:25 p.m., the hour written on the physical evidence used at trial, not 9:15 p.m. Id. at ¶ 9.

Wheeler alleges Nieves also testified at trial that he bought one ten dollar vial from Wheeler on 19 March 1986. Nieves allegedly testified that after this purchase he radioed a description of Wheeler to Humphrey and gave him a description of Wheeler's clothing which was identical to the description he gave Humphrey following the purchase of 11 March 1986. Id. at ¶¶ 21-22. Wheeler alleges: "Defendant Humphrey made a `pass by' the area . . . to verify that [Wheeler] was the suspect in this alleged crime without going through any positive identification procedure." Id. at ¶ 23.*fn5

Wheeler filed the instant complaint on 6 September 1988. Without specifying whether he refers to the conduct of the Defendants resulting in his arrest or to the testimony of Nieves at trial, Wheeler asserts the "action of the [D]efendants [described above] denied [Wheeler] Due Process of law in violation of the Fourth Fifth, Sixth, and Fourteen Amendment [sic] . . . . " Id. at ¶ 28. In addition, he contends he was "deprived of his right to a fair and impartial trial . . . when Nieves knowingly, willingly, and purposely . . . falsified police reports, . . . gave perjured testimonies [sic] under oath, . . . and used false evidence." Id. at ¶ 29. Wheeler contends Humphrey violated his constitutional rights by conducting a "pass by" prior to the arrest of 19 March 1986 without first engaging in "positive identification procedures." Id. at ¶ 30. Wheeler next alleges: "[Wheeler] was semi-strip searched on the public street without an arrest, afterwards, a overly suggestive photo from [Wheeler's] prior conviction for narcotics drug was then put into a line-up and used as evidence violating search and seizure, double jeopardy standards. . . ." Id. at ¶ 31. Next, Wheeler alleges the crimes for which he was convicted were fabricated in violation of his constitutional rights. Id. at ¶ 32. In addition, Wheeler contends: "[He] had no co-defendant in the alleged crime of conspiracy on March 11, 1986, moreover; all through trial there was no one but a John Doe who can be anyone, violating [Wheeler's] right of access to the courts. . . ." Id. at ¶ 33. Finally, Wheeler contends: "All narcotics drug allegedly purchased from the accused or whoever, being marked with the name of John Doe's [sic] . . . was a violation of [Wheeler's] Fourth Amendment of the . . . Constitution and Due Process. . . ." Id. at ¶ 34.

On 8 December 1989, approximately fifteen months after Wheeler filed the complaint, the appellate division of the New Jersey superior court decided his appeal from the conviction. Wheeler raised on appeal the following issues:

    I.  THE APPELLANT'S FIFTH AMENDMENT
        CONSTITUTIONAL RIGHT NOT TO TESTIFY WAS
        VIOLATED WHEN THE STATE IMPERMISSABLY [SIC]
        ELICITED TESTIMONY REGARDING HIS PRIOR
        INVOLVEMENT WITH LAW ENFORCEMENT.
    II. THE STATE IMPERMISSABLY [SIC] INTRODUCED
        OTHER CRIMES EVIDENCE TO ESTABLISH A GENERAL
        DISPOSITION FOR WRONGDOING IN VIOLATION OF
        [NEW JERSEY] EVIDENCE RULE 55.
  III.  THE TRIAL COURT ERRED IN PERMITTING AN IN
        COURT IDENTIFICATION OF APPELLANT AS THERE
        DID NOT EXIST SUFFICIENT INDICIA OF
        RELIABILITY OUTWEIGHING THE CORRUPTING
        EFFECT OF THE SUGGESTIVE PHOTO ARRAY.
    IV. APPELLANT WAS DENIED HIS SIXTH AMENDMENT
        CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE
        OF COUNSEL WHICH AFFECTED THE OUTCOME OF THE
        TRIAL.
    V.  THE SENTENCE IMPOSED WAS MANIFESTLY
        EXCESSIVE.

App. Div. Opinion at 3. In addition, Wheeler raised the following issues in his ...


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