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HAKEEM v. BEYER

September 19, 1991

ALI ABDUL-HABIB HAKEEM, PETITIONER,
v.
HOWARD BEYER, SUPERINTENDENT, TRENTON STATE PRISON, AND ROBERT J. DEL TUFO, ATTORNEY GENERAL OF NEW JERSEY, RESPONDENTS.



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

    OPINION

This is an action by petitioner Ali Abdul-Habib Hakeem pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. For the reasons stated below, the petition for a writ will be granted. However, in light of the reservations expressed herein execution of the writ shall be stayed pending appeal.

STATEMENT OF FACTS

Elois Johnson is the proprietor of the Neighborhood Market Grocery Store located in Newark, New Jersey. During the weeks spanning August 14, 1983 to November 3, 1983, the Neighborhood Market was the target of no less than four armed robberies. On August 14, 1983, the Neighborhood Market was, robbed by three individuals, one armed with a small caliber revolver. 2 Trial Transcript at 66-67, State v. Wooten, No. 604-2-84 (N.J. Super.Ct. Jan. 16, 1985) [hereinafter "Trans."]. The police were immediately notified and it was determined that between $100 and $200 had been stolen. 2 Trans. at 67; 3 Trans. at 87. Johnson and Joseph Hankerson, a store employee, described two of the perpetrators as black males, one approximately thirty years old, five feet two inches tall, the other approximately fifty years old, five feet six inches tall.*fn1 3 Trans. at 94-95. At trial, both Johnson and Hankerson identified petitioner Ali Abdul-Habib Hakeem*fn2 as the armed perpetrator. 2 Trans. at 66; 3 Trans. at 27.

On September 14, 1983, the Neighborhood Market was robbed by two individuals, one armed with a revolver. 2 Trans. at 66. The police were summoned and it was determined that between $100 and $200 had been stolen. 2 Trans. at 67; 4 Trans. at 4. Johnson described the perpetrators as black males, both approximately 21 years old, one six feet tall, 165 pounds, the other five feet eight inches tall, 140 pounds. 4 Trains at 9. Johnson also emphatically stated that one of these individuals had robbed his store approximately a month earlier. 4 Trans. at 5.

On October 16, 1983, the Neighborhood Market was again the target of an armed robbery.*fn3 Afterwards, the police were called and it was determined that approximately $200 had been stolen. 2 Trans. at 67; 3 Trans. at 98. Johnson described one of the perpetrators as a black male in his forties, standing five feet four inches tall with greying black hair and brown eyes. 3 Trans. at 100. Johnson also stated that this was the same individual who had robbed his store approximately two months earlier. 3 Trans. at 98.

On November 3, 1983, at approximately 2:50 p.m., three individuals, one armed with a sawed-off shotgun, another with a .38 caliber revolver, entered the Neighborhood Market. 2 Trans. at 59, 61. The man armed with the shotgun ordered Johnson and Hankerson to hand over their money and to go to the rear of the store. 2 Trans. at 60-61; 3 Trans. at 28. The police later arrived and it was determined that the perpetrators had taken a red money bag containing between $300 and $400 of currency and food stamps. 2 Trans. at 63; 4 Trans. at 22. After being given a general description of the perpetrators*fn4 and their getaway car (a black Oldsmobile), the police began a search of the immediate area, achieving negative results. 4 Trans. at 22; Suppression Hearing Transcript at 10, State v. Wooten, et al., No. 604-2-84 (N.J. Super.Ct. Jan. 7, 1985) [hereinafter "Sup.Trans."].

Shortly after their initial investigation, a witness to the crime supplied the police with the license plate number of the car that drove the perpetrators from the scene. Sup.Trans. at 12. A trace of this license plate revealed that the automobile in question was registered to Bennie Roberts of 270 Dayton Street, Newark, New Jersey. The police immediately placed this location under surveillance. Sup.Trans. at 12. At approximately 3:35 p.m., the police stopped a black Oldsmobile in the general vicinity of 270 Dayton Street. Sup.Trans. at 13; 4 Trans. at 24. The car was occupied by three black males, all of whom were ordered out of the automobile and held at gunpoint. Sup.Trans. at 13; 4 Trans. at 23. The three individuals were then frisked for weaponry, but none was discovered on their persons. Sup.Trans. 35; 3 Trans. at 47.

The police then began a search of the automobile. On the rear floor of the car, the police discovered a loaded 13 gauge sawed-off shotgun partially covered by a piece of cloth. Sup.Trans. at 35; 3 Trans. at 48. This was the area of the vehicle in which the petitioner had been seated. Sup. Trans. at 15; 4 Trans. at 24. A .38 caliber revolver, loaded with six hollow-point bullets, was also discovered, as was a red pouch and four additional shotgun shells. Sup.Trans. at 37-38; 3 Trans. at 49-50.

The three individuals were then placed in the rear of a police car and taken to the scene of the robbery for purposes of obtaining a positive identification. 3 Trans. at 71-72. Upon arriving at the Neighborhood Market, Johnson and Hankerson were individually asked to view the suspects seated in the rear of the police car. Both positively identified petitioner as one of the persons involved in the robbery. 2 Trans. at 64-65; 3 Trans. at 29-30. The three were then taken to police headquarters for processing. A search of petitioner revealed that he was in possession of $15.10, comprised of both currency and food stamps. Sup.Trans. at 43; 3 Trans. at 53. The two other men were also searched and found to be in possession of $99.20 and $180.75, respectively. Sup.Trans. at 44-45; 3 Trans. at 55-56.

At trial, petitioner vehemently denied his involvement in the crime and raised an alibi defense. He testified that on November 3, 1983, at approximately 2:50 p.m., he was visiting the offices of the Newark Department of Sanitation in hopes of securing future employment. 4 Trans. at 77078. He claimed to have been seen at that location by two receptionists; however, the receptionists were unable to corroborate his account. 4 Trans. at 92-93, 107-108. He also indicated that he did not sign in or otherwise record his presence at this location. 4 Trans. at 79. Thus, no credible proof corroborating petitioner's alibi testimony was adduced at trial.

Petitioner further testified that after this interview he accepted a ride from the two other suspects connected with the November 3, 1983 robbery. 4 Trans. at 81-82. He denied that he ever saw any of the weapons later found in the car and claimed that he was unaware that a robbery had recently taken place. 4 Trans. at 84-86. Petitioner further testified that when he was brought to the Neighborhood Market by the police, neither Johnson nor Hankerson had been able to identify him as one of the perpetrators. 4 Trans. at 86. Petitioner also denied any involvement in any of the preceding Neighborhood Market robberies, 4 Trans. at 90, and stated that he was a forty-six year old light-skinned black male who weighed 127 pounds. 4 Trans. at 90-91. Johnson, however, not only confirmed his out of court identification of petitioner, but testified that petitioner was among the perpetrators of the August 14, September 14, and October 16, 1983 robberies. 2 Trans. at 64-68.

PROCEDURAL HISTORY

On February 7, 1984, petitioner was indicted by a grand jury in connection with the previously recounted robberies of the Neighborhood Market. The nine count indictment charged petitioner with four counts of armed robbery, N.J.S.A. 2C:15-1 [Counts I-IV],*fn5 aggravated assault, N.J.S.A. 2C:12-1(b)(4) [Count V], unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) [Count VI], unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) [Count VII], possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) [Count VIII], and unlawful possession of hollow-nosed bullets, N.J.S.A. 2C:39-3(f) [Count IX].*fn6

On March 7, 1984, petitioner entered a plea of not guilty to all counts of the indictment. On December 11, 1984, petitioner filed a petition for a writ of habeas corpus with the United States District Court for the District of New Jersey. In support of this petition, the petitioner alleged the following grounds for relief: (1) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, (2) denial of a speedy trial in violation of the Sixth and Fourteenth Amendments, and (3) the imposition of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Honorable Frederick B. Lacey, United States District Judge, dismissed this petition without prejudice for failure to exhaust state remedies. Wooten v. Butler, No. 84-5134 (D.N.J. Mar. 25, 1985).

On January 7, 1985, the New Jersey Superior Court heard and denied a motion brought by the petitioner to suppress evidence procured during the petitioner's arrest. State v. Wooten, et al., No. 604-2-84 (N.J. Super.Ct. Jan. 7, 1985). On January 14, 1985, the Superior Court held a Sands*fn7 hearing and determined that all of petitioner's prior convictions would be admissible into evidence to impeach his credibility should petitioner testify at trial. 1 Trans. at 1-8. On January 16, 1985, the Superior Court held a Wade*fn8 hearing and determined that the State's out-of-court identifications of the petitioner would be admissible at trial. 2 Trans. at 14-31.

On January 16, 1985, the petitioner was tried before a jury in the Superior Court. By a verdict rendered on January 23, 1985, petitioner was found not guilty on counts I-III of the indictment. However, the jury did find petitioner guilty on the remaining six counts (IV-IX). On March 7, 1985, the court entered the judgment of conviction and sentenced petitioner to a twenty-five year term of incarceration with twelve-and-a-half years of parole ineligibility on Count IV. A term of eighteen months was imposed on Count V and terms of five years were imposed on Counts VI and VII, each to be served concurrently with the term imposed on Count IV. Petitioner was sentenced to a fifteen year term of incarceration with seven-and-a-half years of parole ineligibility on Count VIII, this term to be served consecutively to that imposed on Count IV. A term of eighteen months was imposed on Count IX to be served concurrently with that imposed on Count VIII. Petitioner's total term of incarceration was reduced by 420 days as credit for time served while awaiting trial.

Petitioner filed a timely appeal, asserting nine grounds of error: (1) the sentences imposed on Counts IV and VIII should run concurrently rather than consecutively, (2) the trial court erred in not merging Counts IV and VIII for sentencing purposes, (3) the trial court erred in not merging Counts V and VI for sentencing purposes, (4) the trial court erred in denying petitioner's suppression motion, (5) the petitioner received ineffective assistance of counsel, (6) the trial court erred in admitting identification testimony that resulted from an unduly suggestive procedure, (7) the trial court erred in proceeding with thirteen, rather than fourteen, jurors, (8) the petitioner was denied his right to a speedy trial, and (9) the petitioner was denied a fair trial due to prosecutorial misconduct. The New Jersey Superior Court, Appellate Division, affirmed the convictions in an unpublished per curiam opinion. State v. Wooten, No. A-3657-84T4 (N.J. Super.Ct.App. Div. June 30, 1988). Petitioner filed a petition for certification nunc pro tunc to the New Jersey Supreme Court which was denied on February 21, 1989. Petitioner then sought post-conviction relief in the New Jersey Superior Court of Essex County, alleging that he was sentenced in violation of the Fifth and Eighth Amendments. This petition was dismissed without prejudice on December 8, 1989 for petitioner's failure to appear. State v. Wooten, No. 609-2-84 (N.J. Super.Ct. Dec. 8, 1989).

The instant petition followed on June 11, 1990. Petitioner, who is currently incarcerated in the Oregon State Penitentiary,*fn9 is proceeding pro se. In support of his application, petitioner asserts the following claims for relief: (1) the sentence imposed was violative of the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment, (2) the trial court admitted evidence obtained in violation of the Fourth Amendment, (3) the state's out-of-court identification procedure was unduly suggestive, and therefore in violation of the Fourteenth Amendment, (4) the trial court failed to excuse a juror for cause and erred in proceeding to trial with thirteen jurors, thereby violating the Due Process Clause of the Fourteenth Amendment, (5) the state engaged in prosecutorial misconduct which violated the Due Process Clause of the Fourteenth Amendment, (6) the petitioner received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, and (7) the petitioner was denied a speedy trial in violation of the Sixth and Fourteenth Amendments.

DISCUSSION

I.  Exhaustion of State Remedies

Before a federal court will entertain a petition for habeas corpus, the petitioner must exhaust all available state judicial remedies. 28 U.S.C. § 2254(b) and (c). See also Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981). This provision serves to foster comity between the federal judiciary and the courts of the several states, providing the means of balancing the needs of federalism with the protection of an individual's constitutional rights. See Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987). The United States Supreme Court has embraced a rule of "total exhaustion", thereby mandating that a petitioner exhaust his state remedies with respect to every claim raised in his habeas petition. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). Thus, a petition containing both exhausted and non-exhausted claims must be dismissed. Id. at 510, 102 S.Ct. at 1199; McMahon v. Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987).

Upon review of both petitioner's appellate brief and his petition for certification, it is clear that claims two through seven of the instant petition have been exhausted. However, respondent argues that petitioner's double jeopardy claim has not been previously addressed in the state courts. Respondent concedes that the petitioner has previously objected to the sentence imposed by the trial court. However, in his briefs submitted to the Appellate Division and Supreme Court, petitioner grounded these objections solely upon the tenets of New Jersey law. These briefs cite no federal case law in support of these contentions, nor do they make even passing reference to the federal Constitution's Double Jeopardy Clause. The state argues that since the state courts have not been presented with the opportunity to pass upon these claims, the instant petition should be dismissed under the mixed-petition rule espoused in Rose v. Lundy. I disagree.

In order for a federal habeas claim to be exhausted, the state's highest court must have had a "fair opportunity to apply controlling legal principles to the facts bearing on [the] constitutional claim." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971)). As long as the state courts were provided the opportunity to rule upon a claim, their failure to explicitly do so will not affect the exhaustion analysis. See Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed.2d 582 (1978). In providing the state courts with such an opportunity, petitioner need not "cite book and verse on the federal constitution"; however, he must present the state courts with the "substantial equivalent" of his federal claims. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971); see also Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). This requirement is satisfied only when the state courts have been exposed to the relevant facts and controlling legal principles set forth in the federal petition for habeas corpus. See Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986); Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976) (en banc).

There is no question that the facts alleged in support of the instant petition are identical to those previously presented before the New Jersey courts. Moreover, I conclude that the federal constitutional dimension of petitioner's double jeopardy claim was adequately presented to the state courts. In his various appeals before the New Jersey courts, petitioner's sentencing objections were expressly grounded upon state law. However, a review of the case law cited by petitioner reveals that some of those cases on which he relied invoke the double jeopardy protections afforded by the New Jersey Constitution. See N.J. Const., art. I ¶ 11 (1947); and see, e.g., State v. Davis, 68 N.J. 69, 83, 342 A.2d 841, 846 (1975), cited in Brief for Appellant at 10, State v. Wooten, No. A-3657-84T4 (N.J. Super.Ct.App. Div. June 30, 1988). Hence, the State courts were fairly presented with a double jeopardy claim under the State constitution.

Despite the restrictive wording of New Jersey's Double Jeopardy Clause,*fn10 its scope has long been held to embrace the more expansive double jeopardy protections embodied in the common-law. State v. Currie, 41 N.J. 531, 536, 197 A.2d 678 (1964). Consequently, the New Jersey Supreme Court has held the Double Jeopardy Clauses of the state and federal constitutions to be coextensive in both scope and application. See State v. Farmer, 48 N.J. 145, 168, 224 A.2d 481 (1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967). Thus, a double jeopardy claim premised on New Jersey law is indistinguishable from a federal double jeopardy claim. See State v. Sanders, 107 N.J. 609, 618-620, 527 A.2d 442 (1987); State v. Dively, 92 N.J. 573, 578, 458 A.2d 502 (1983).

When the "substance of . . . [a] state claim is virtually indistinguishable from the [constitutional] allegation raised in federal court[ ]," the claim will be considered exhausted for purposes of habeas corpus. Santana, 685 F.2d at 74 (quoting Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980)). Given the New Jersey Supreme Court's construction of the State Constitution's double jeopardy protections, I am impelled to conclude that every claim advanced in the instant habeas petition has been fairly presented to the New Jersey state courts.

In addition, petitioner's failure to continue his pursuit of post-conviction relief in the State appellate courts will not derail his current petition. Such collateral relief is unavailable in the state trial court when the petitioner raises issues specifically adjudicated upon direct appellate review. N.J.Ct.R. 3:22-5. Moreover, a petitioner need not seek such relief when the state courts have declined to adjudicate a claim on direct appeal despite having been given the opportunity to do so. See O'Halloran v. Ryan, 835 F.2d 506, 509 (3d Cir. 1987); United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir. 1978). As the instant petition is comprised solely of issues presented to the Appellate Division and the New Jersey Supreme Court on direct appeal, ...


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