The opinion of the court was delivered by: Lechner, District Judge.
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
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
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
V. THE SENTENCE IMPOSED WAS MANIFESTLY
App. Div. Opinion at 3. In addition, Wheeler raised the
following issues in his ...