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Landano v. Rafferty

filed: July 16, 1992.

VINCENT JAMES LANDANO
v.
JOHN J. RAFFERTY, SUPERINTENDENT, RAHWAY STATE PRISON; IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, STATE OF NEW JERSEY, JOHN J. RAFFERTY, SUPERINTENDENT, EAST NEW JERSEY STATE PRISON, ROBERT DEL TUFO, ATTORNEY GENERAL OF STATE OF NEW JERSEY, APPELLANTS; VINCENT JAMES LANDANO V. JOHN J. RAFFERTY, SUPERINTENDENT, EAST JERSEY STATE PRISON; PETER PERRETTI, ATTORNEY GENERAL, STATE OF NEW JERSEY; LESLIE FAY SCHWARTZ, DEPUTY ATTORNEY GENERAL; THE OFFICE OF THE HUDSON COUNTY PROSECUTOR; KEARNY POLICE DEPARTMENT; NEWARK POLICE DEPARTMENT; JERSEY CITY POLICE DEPARTMENT; AND PERTH AMBOY POLICE DEPARTMENT, STATE OF NEW JERSEY, JOHN J. RAFFERTY, SUPERINTENDENT, EAST NEW JERSEY STATE PRISON, ROBERT DEL TUFO, ATTORNEY GENERAL OF STATE OF NEW JERSEY, APPELLANTS; JOHN J. RAFFERTY, SUPERINTENDENT, EAST NEW JERSEY STATE PRISON, AND ROBERT DEL TUFO, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, APPELLANTS V. VINCENT JAMES LANDANO



On Appeal from the United States District Court For the District of New Jersey. (D.C. Civil Nos. 85-04777 and 89-02454) On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 91-1881)

Before: Sloviter, Chief Judge, Scirica and Roth, Circuit Judges

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Chief Judge.

This is the fourth time that this court has before it an aspect of the efforts by plaintiff-petitioner Vincent James Landano seeking a writ of habeas corpus awarding a new trial. Landano was convicted in 1977 in New Jersey state court on a charge of felony murder of a police officer during the course of the robbery of a check-cashing establishment in New Jersey. In previous appeals to this court, we affirmed the district court's denial of a writ of habeas corpus, Landano v. Rafferty, 856 F.2d 569 (3d Cir. 1988), cert. denied, 489 U.S. 1014 (1989); reversed the district court's subsequent grant of a conditional writ of habeas corpus because we concluded Landano had failed to exhaust state remedies, Landano v. Rafferty, 897 F.2d 661 (3d Cir.), cert. denied, 112 L. Ed. 2d 23, 111 S. Ct. 46 (1990); and, most recently, in related litigation, affirmed in part and reversed in part the district court's order granting Landano's request for certain information under the Freedom of Information Act in which Landano seeks to uncover potentially exculpatory material. See Landano v. Rafferty, 956 F.2d 422 (3d Cir. 1992).*fn1

The present appeals are by defendants John J. Rafferty, Superintendent of East New Jersey State Prison, and Robert Del Tufo, Attorney General of the State of New Jersey, (collectively referred to as "the State") from two orders granting bail to Landano. The first order granting bail to Landano pending review of his petition for habeas corpus was entered by the district court on May 3, 1991. We heard argument on these appeals on December 12, 1991.

On February 4, 1992, while the appeal was sub judice, the district court ruled on matters previously pending before it, and issued an order denying the State's motion to dismiss Landano's petition for failure to exhaust, staying the petition for habeas corpus pending exhaustion in the state courts, and, as most relevant here, continuing Landano's enlargement on federal bail pending exhaustion of state remedies. Landano v. Rafferty, 782 F. Supp. 986 (D.N.J. 1992). The State sought to appeal this order by filing a petition for permission to appeal. We hold that there was insufficient legal basis for the district court's bail orders, and reverse.

I.

FACTS

This case has a long and complicated procedural history which is set forth in detail in this court's prior opinions, as well as in district court opinions*fn2 which in turn relied on state court opinions. We will recount the facts only insofar as they are relevant to the issues before us.

On August 13, 1976, in the course of a robbery of the Hi-Way Check Cashing Service in Kearny, New Jersey, by two gunmen, one gunman killed Newark Police Officer John Snow. A Hudson County grand jury indicted Landano along with Allen Roller, Victor Forni, and Bruce Reen, for felony murder, armed robbery, and other offenses related to the incident. The day before the scheduled trial of Roller and Landano, Roller pled non vult to the felony murder charge and entered into a plea agreement with the Hudson County Prosecutor to testify against Landano at trial. Roller's testimony was highly damaging to Landano.

Roller testified at trial that the robbery was masterminded by a motorcycle gang known as "The Breed," which frequently organized robberies in the area around Staten Island, New York, and that Landano, although not a Breed member or affiliate, was recruited specifically for the Kearny robbery at Forni's suggestion. Roller stated that when he and Landano arrived at the Hi-Way Check Cashing Service trailer early in the morning of August 13, 1976, Roller went to the window of the trailer and forced his way inside while Landano waited outside. Meanwhile, Officer Snow arrived in a patrol car at the Hi-Way parking lot carrying an attache case containing $46,000 in cash which was to be delivered to the check-cashing establishment. Roller testified that after he took the cash drawer of the check- cashing establishment at gunpoint, he saw Landano running from a police car carrying an attache case. When he and Landano got in the car after the event, Landano stated that he had to "ice [or waste] the cop." Landano, 670 F. Supp. at 574.

Joseph Pascuitti, an employee of an adjacent warehouse, testified that he saw a dark-haired man approach Officer Snow's patrol car, that a moment later he heard gunshots, and that when he turned back, he saw a green Chevrolet pull away with the same dark-haired man driving. Pascuitti described the dark-haired man as having curly hair; he was not able to identify Landano as that man.

The attempt of the perpetrators to maneuver away from the crime scene in snarled traffic caught the attention of Raymond Portas, a truck driver stopped at an intersection. He testified that Landano was driving the car, but he was unable to identify Roller. This was the bulk of the evidence presented at Landano's trial linking him to the murder of Officer Snow. Id. at 574-75.

In May 1977, Landano was found guilty on all counts and was sentenced to life imprisonment and a consecutive seven to fifteen year term for the other offenses.*fn3 In June 1977, Landano filed a notice of appeal. In October 1978, Landano obtained an order remanding the case to the trial court for consideration of a motion for a new trial on the basis of newly discovered evidence. Judge Maurice A. Walsh Jr., J.S.C., found, after a hearing, that the knowledge of evidence of prior robberies carried out by Roller and Forni could be imputed to the prosecutor, that it had been suppressed, and that had it been revealed at trial it "'would have been probative in demonstrating, if Roller denied Forni's participation [in those robberies], that Roller was protecting Forni.'" Id. at 585 (quoting Opinion of Judge Walsh, December 1, 1978, Appendix Vol I. at 36A). Nevertheless, the court concluded that the evidence, although "exculpatory," was not "material" within the meaning of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963),*fn4 because the outcome of the trial would not have been different had it been revealed. The trial court thus denied the motion for a new trial. The Superior Court of New Jersey, Appellate Division, both affirmed that denial and denied Landano's direct appeal, and the New Jersey Supreme Court denied certification in July 1980.

Landano subsequently filed for post-conviction relief in state court in March 1982, based on, inter alia, a recantation by Raymond Portas, the truck driver who had positively identified Landano, and another Brady claim. The details of Portas's recantation and the reasons therefor are fully set forth by the district court in Landano, 670 F.Supp. at 574-84. Hearings on these claims were conducted in June, September, October, and November of 1982 before Judge Joseph P. Hanrahan, J.S.C. Portas testified that he had failed to identify Landano from a photo display on the day of the crime but nevertheless, on April 15, 1977, eight months later, he initialed the back of a photograph of Landano after the detective stated "'that's the man we want.'" Id. at 576. Portas claimed that he had picked out a different photograph (possibly of Victor Forni, see id. at 578-79 n.5) which the prosecutor handed to someone who took it out of the room. Portas also stated at the post-conviction hearing that when he was in the courthouse right before trial, a detective told him that Landano had passed them in the hallway and stated "'that's our man.'" Id. at 577. Portas testified that he had not recognized Landano.

The state trial court denied the relief, finding Portas's recantation untrustworthy. See id. at 577-78. In January 1984 the Appellate Division denied Landano's appeal of that finding and in June 1984, the New Jersey Supreme Court denied certification.

Landano filed his first petition for habeas corpus in federal district court in New Jersey in October 1985, claiming a violation of his due process right to a fair trial based on Portas's recantation and the Brady claims he had raised in his motion for a new trial. The district court held an evidentiary hearing on September 2, 1987, and concluded that Portas "is a credible witness and further, that his recantation testimony is believable," id. at 579, and that the State's explanation of the missing photographs was "implausible." Id. at n.7. Nevertheless, because of the presumption of correctness for a state court's determination of a factual issue under 28 U.S.C. § 2254(d)(1982), and the inapplicability of any of the exceptions to the presumption, the court deferred to the state court's determination that Portas was not a credible witness. The court also rejected Landano's claim that the State suppressed exculpatory and material evidence in violation of the requirements of Brady, and thus denied Landano's first petition for habeas corpus on the merits.*fn5 This court affirmed. See Landano v. Rafferty, 856 F.2d 569 (3d Cir. 1988).

In June 1989, Landano filed a motion under Fed. R. Civ. P. 60(b) to reopen the habeas proceeding because of fraud on the part of the prosecution concerning the suppression of evidence, and requested a temporary restraining order to obtain files from the New Jersey Attorney General and the Hudson County Prosecutor. The court so ordered and Landano's counsel was permitted to review certain state documents.

Thereafter, Landano presented to the federal court allegedly exculpatory evidence of a handwritten document (the "ID on Landano") from the Kearny police files suggesting that Pascuitti and another potential witness, Christopher Calabrese, had rejected a photograph of Landano after stating that the suspect's hair was more curly, and a Kearny Police Department Continuation Report submitted by a Detective Rose which summarized a meeting with someone named either Joseph Pasapas or Basapas. Pasapas/Basapas apparently picked out a photograph of Victor Forni "as resembling the man who drove the car away."

After finding that Landano had exhausted his federal claims in state court, the district court reopened the habeas proceeding, invoking the "extraordinary circumstances" standard under Fed. R. Civ. P. 60(b)(6)*fn6 based on Landano's allegations that the State suppressed exculpatory evidence. Landano v. Rafferty, 126 F.R.D. 627, 638 (D.N.J. 1989). The court found that there was a violation of Brady v. Maryland because the evidence presented had been suppressed, was exculpatory, and was material because if the defense had known about it, it would have bolstered Landano's affirmative defense that Forni was the actual killer of Officer Snow. Id. at 644-54. Accordingly, the court granted a conditional writ of habeas corpus unless the state commenced a new trial within ninety days, and ordered Landano released on bail on July 28, 1989. Id. at 654.

The State appealed the conditional grant of the writ. In February, 1990, this court reversed the district court on the ground that Landano had not exhausted some of the claims on which the district court based its decision. Landano, 897 F.2d 661 (3d Cir.), cert. denied, 112 L. Ed. 2d 23, 111 S. Ct. 46 (1990). We held that Landano must provide the state courts with the factual predicate for his legal theory as to why his constitutional rights have been violated so that the court could determine the materiality of the material suppressed. We stated that in making that determination, a court "must conduct a fact-sensitive examination of the precise nature of the suppressed information" so that it can make the "delicate judgment as to whether there is a reasonable probability that had the suppressed evidence been disclosed, the outcome of the trial would have been different." Id. at 670. Thereafter, the district court dismissed Landano's habeas petition.

Landano returned to state court and filed a petition for habeas corpus/post-conviction relief and bail. The bail was denied by Judge Walsh and that denial was affirmed on appeal. On November 15, 1990, however, the New Jersey Supreme Court, without an opinion, granted Landano, who was still at liberty at the time following the district court's earlier order granting Landano's writ of habeas corpus, a stay of the arrest order pending a decision on his post-conviction relief petition. The status of this stay of arrest as bail vel non is an issue which the parties address but which we need not decide.

On March 4, 1991, Judge Walsh denied Landano's petition under New Jersey Rule of Criminal Procedure 3:22-1 for post-conviction relief, referring, inter alia, to the concession of Landano's counsel that everything he was asserting in this petition had already been previously presented to the state courts. Inasmuch as Rules 3:22-4 and 3:22-5 bar relief in post-conviction proceedings on grounds that either were not raised in prior proceedings (with exceptions) or for issues already adjudicated, Judge Walsh ruled that "it is evident that petitioner continues to raise issues and arguments which have long since been ruled on and supposedly disposed of under our New Jersey Court Rules." State v. Landano, No. 73-76, slip op. at 23 (N.J. Super. Ct. March 4, ...


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