The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Presently before this Court is petitioner Braynard Purnell's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated in the New Jersey State Prison, P.O. Box 861, Trenton, New Jersey 08625. For the following reasons, petitioner's application is denied.
Petitioner Braynard Purnell was implicated in the August 26, 1988, killing of alleged drug dealer Lawrence Talley in West Atco, New Jersey. Although no eyewitnesses were present, the State prevailed on the theory that petitioner stabbed Talley during an attempted drug transaction and hid the body in a hedgerow in his backyard. See State v. Purnell, 601 A.2d 175, 177-78 (1992).
On February 14, 1990, petitioner was convicted, in the New Jersey Superior Court, Law Division, of capital murder, hindering apprehension, and perjury. (Pet. ¶¶ 1-4). On March 23, 1990, petitioner was sentenced to death on the capital murder charge, which was merged with a charge for possession of a weapon for an unlawful purpose. (Answer at 2). On the hindering apprehension and perjury convictions, petitioner was sentenced to five years with a two year parole disqualifier and a flat five year term, both to be served consecutive to the death sentence but concurrently with each other. (Answer at 2).
On appeal, the New Jersey Supreme Court vacated petitioner's death sentence, but affirmed his convictions for non-capital murder, hindering apprehension, and perjury. Purnell, 601 A.2d at 177. The government decided not to re-try petitioner for capital murder, but moved for resentencing on the non-capital murder count. Petitioner was resentenced to life imprisonment with a 30-year parole disqualifier. (Answer at 2).
On March 4, 1995, petitioner filed his only petition for post-conviction relief in the New Jersey Superior Court, Law Division, Camden County, alleging that he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel. (Pet. ¶ 11). The Law Division judge held an evidentiary hearing on the issue of whether counsel was ineffective in not subpoenaing a witness, and on December 1, 1995, denied petitioner's motion. (Answer at 4).
On March 20, 1998, the New Jersey Superior Court, Appellate Division, affirmed the denial of the ineffective assistance of counsel claim, but vacated petitioner's perjury conviction. (Answer at 4). On June 17, 1998, the New Jersey Supreme Court denied petitioner's application for certification, but granted the State's petition regarding the vacated perjury conviction. The State's petition is currently pending. On April 9, 1999, petitioner filed the instant application for a writ of habeas corpus with this Court.
In his instant application, petitioner seeks relief from the Court based on nine grounds. He claims that: (1) he was denied his Sixth and Fourteenth Amendment rights to counsel when his attorney could not appear on three separate occasions for jury selection and instead sent another attorney; (2) he was denied his Constitutional right to a fair trial and effective counsel when his attorney failed to subpoena a witness or request a continuance when the witness did not appear for trial; (3) he was denied his Constitutional right to a fair trial when the trial court did not charge the lessor-included offense of passion/provocation manslaughter; (4) he was denied his Constitutional right to a fair trial and impartial jury when the trial court failed to ask the prospective jurors whether they may be prejudiced against defendant because of his race; (5) he was denied his right to due process when the trial court used unsworn jury questionnaires; (6) he was denied his Constitutional right to effective assistance of counsel because his attorney's performance at both stages of the trial was deficient; (7) he was denied his Constitutional right to a fair trial because of the prosecutor's improper conduct during the guilt phase summation; (8) he was denied his right to due process and a fair trial when the trial judge refuse to question the jurors after a newspaper article appeared indicating that the jury had considered petitioner's failure to testify as evidence of his guilt; and (9) he was denied his Sixth and Fourteenth Amendment rights to effective counsel when counsel failed to argue that his statement should have been suppressed because it was obtained after he requested that questioning be stopped. (Pet. ¶ 12).
Before filing a § 2254 habeas application, a petitioner must exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). The burden of proving that all state remedies have been exhausted rests with the petitioner. Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982). Section 2254 of Title 28, United States Code provides: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." If any of the claims presented are not exhausted, the entire petition is deemed "mixed" one and must be dismissed. Rose v. Lundy, 455 U.S. 509, 510 (1982).
To satisfy the exhaustion requirement, a petitioner must "fairly present" his claims to the highest state court. Picard v. Connor, 404 U.S. 270, 275 (1971). A claim is considered "fairly presented" when petitioner "demonstrate[s] that [he] has presented the legal theory and supporting facts asserted in the federal habeas petition in such a manner that the claims raised in state courts are substantially equivalent to those asserted in federal court." Henderson v. Frank, 155 F.3d 159, 166 (3d Cir. 1998). In Picard, the Supreme Court stated, "(w)e do not imply that respondent could have raised the (constitutional) claim only by citing book and verse on the federal constitution ... We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts." Picard 404 U.S. 270, 278 (1971)(citation omitted).
More recently, in Duncan v. Henry, 513 U.S. 364 (1995), the Supreme Court, expanding its holding in Picard, held that in order for a federal law claim to be "fairly presented," the petitioner had to allege his claim as a violation of federal law in the course of his state court proceedings. In Duncan, the Court reviewed a Ninth Circuit case where petitioner had asserted a claim in state court without making reference to federal law and then asserted the same claim in his federal habeas application as a violation of his constitutional due process rights. The Court reversed the Ninth Circuit's holding that petitioner had exhausted the claim, stating:
If state courts are to be given the opportunity to correct alleged violations of its prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court but in state court. 513 U.S. at 365-6.
Following Duncan, the Third Circuit interpreted the Court's holding as a reaffirmation of Picard and Anderson v. Harless, 459 U.S. 4, 6 (1982), which held that to fairly present a federal law claim the petitioner must do so in a manner that puts the state court on notice that a federal claim is before it. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). The Third Circuit's narrow holding was that the petitioner had not exhausted his "double hearsay" claim as his state court claim "made no reference to a constitutional or federal right and cited only state cases considering state evidence law without employing any constitutional analysis." Id. at 262. However, more generally, the Circuit held that a federal law claim is fairly presented if the claim had one of the following four elements in the state court pleadings even if petitioner did not refer to the specific appropriate portions of the Constitution:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless, 172 F.3d at 261 (quoting Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227 (3d Cir. 1992)).
In the instant case, the Government argues that petitioner has failed to exhaust Grounds Five and Eight of his application because he did not "raise them in federal constitutional terms in state courts." (Gov't Brief at 5.) In Ground Five of petitioner's application he states, "The Court's use of an unsworn jury questionnaire to expose individual Juror biases and prejudices in lieu of individual Voir Dire in most areas violated Defendant's Due Process of law." Petitioner further explains, "[t]he Trail [sic] judge used the Jury questionnaire in lieu of voir dire in many instances. The procedure was so unreliable as to violate defendant's Constitutional Rights to an impartial Jury and Due process of law." The Government argues in their brief that Ground Five is not exhausted because it was alleged to the state court only under New Jersey law and that the use of the term "due process" is not enough to connote a claim under the Constitution of the United States.
Ground Five of petitioner's current petition was alleged as Point Two in his brief to the New Jersey Supreme Court. Point Two claimed "[t]he trial court's use of an unsworn jury questionnaire to expose individual juror biases and prejudices in lieu of individual voir dire in most areas violated New Jersey Court rule 1:8-3(a) and denied Mr. Purnell Due Process of law." (Petitioner's Brief, Table of Contents.) In the "Legal Argument" section of his brief, petitioner not only alleges this claim under New Jersey law but also relies on specific portions of the Constitution and federal law. The following are passages from Petitioner's Brief:
Defendant would submit that not only was this procedure in violation of R. 1:8-3(a), which requires that voir dire be `under oath,' but also that the procedure was so unreliable as to violate his constitutional rights to an impartial jury and due process of law. The Sixth Amendment to the United States Constitution ... guarantee to criminal defendants `the right to ... trial by an impartial jury.' (Pet'r at 49.)
Since the demands of due process under the Federal Constitution as well as the New Jersey Constitution require that a defendant in a criminal prosecution be given a fair trial by an impartial jury.... (Pet'r 55.)
...the Federal and State Constitutional right to be fairly tried by an impartial jury. (Pet'r at 56.)
Constitutional violations by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless.
Additionally, petitioner cites State v. Bey, 112 N.J. 45, 95, citing the Supreme Court's decision in Satterwhite v. Texas, 486 U.S. 249 (1988) and relies on other state cases analyzing constitutional issues. (Pet'r at 56.)
It is quite clear from the passages above, that petitioner not only relies on state law and his rights under the state constitution but also consistently asserts his rights under the United States Constitution. Recent courts have been satisfied that a petitioner's claims were exhausted with far fewer references to federal law than the present petitioner. In Keller v. Larkins, 89 F. Supp. 2d 593 (E.D.Pa. 2000), the defendant filed a habeas corpus application pursuant to § 2254 in which he alleged the admission of certain evidence prejudiced his trial. Defendant protested that admission of this evidence deprived him of a fair trial. Throughout defendant's state briefs he also called upon his right to a fair trial. Id. at 598. The court held that petitioner had exhausted his claim even though he never "explicitly cited the federal due process clause," but only "consistently referred to his right to a fair trial." Id. at 598. See also Hameen v. State of Delaware, 212 F.3d 226 (3d Cir. 2000)(holding petitioner had exhausted his claim because in his brief to the state supreme court he supported his claim by citing to a Supreme Court case that addressed the Eighth Amendment). Here, as in Keller, petitioner has made clear that he was alleging his claim under both state and federal law. Accordingly, the Court finds that Ground Five has been fairly presented, and, thus, exhausted.
In Ground Eight petitioner claims, "[t]he Judge erred in refusing to question the jurors after a newspaper article appeared indicating that the jury had considered defendant's failure not to testify as evidence of his guilt." For similar reasons we find petitioner exhausted Ground Eight.
In petitioner's brief to the New Jersey Supreme Court, Ground Eight was alleged as Point Seventeen, in which he made an identical assertion to that quoted above. Petitioner's brief to the New Jersey Supreme Court states:
Defendant would submit that his right to a fair trial and his Fifth Amendment right not to be penalized for declining to testify both demand that a new trial be ordered, or that the jurors be interrogated.
It does not matter here whether the jury actually used the defendant's failure to testify as evidence of his guilt; the mere fact that it may have considered his exercise of his constitutional right is in itself grounds for a new trial. (Pet'r Brief at 198.)
Based on the analysis of Ground Five and the holding of McCandless, the Court finds petitioner's claim to have been fairly presented as a ...