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HAKEEM v. BEYER
September 19, 1991
ALI ABDUL-HABIB HAKEEM, PETITIONER,
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.
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.
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
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
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.
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
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,
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.
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.
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
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
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, ...