623 F.2d 307 (3rd Cir. 1980), 79-2040, Bisaccia v. Attorney General of State of N. J.

Docket Nº:79-2040.
Citation:623 F.2d 307
Case Date:June 12, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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623 F.2d 307 (3rd Cir. 1980)

BISACCIA, Robert, Appellant,



No. 79-2040.

United States Court of Appeals, Third Circuit

June 12, 1980

Argued March 17, 1980.

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Allen C. Marra (argued), Millburn, N. J., for appellant.

John J. Degnan, Atty. Gen., Trenton, N. J., Donald S. Coburn, Prosecutor, Essex County, Steven J. Kaflowitz (argued), Asst. Prosecutor, Essex County, Newark, N. J., for appellee.

Before SEITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge and SIMMONS, District Judge. [*]


A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This is an appeal from a denial of a petition for a writ of habeas corpus. The district court held that the appellant had failed to satisfy the "exhaustion of state remedies" requirement of 28 U.S.C. § 2254(b) and had failed to demonstrate a constitutional violation as required by 28 U.S.C. § 2254(a). We disagree with both of these conclusions and therefore will reverse.


The appellant, Robert Bisaccia, was convicted in a New Jersey state court along with three co-defendants of conspiracy, entering with intent to steal, and larceny of goods of value in excess of $500. During the trial, the prosecution presented the testimony of a co-conspirator, Joseph Cicala, who testified about his own plea of guilty to a charge arising out of the alleged conspiracy. Over defense counsel objections, the trial judge permitted the introduction of this testimony as to the guilty plea without requiring the prosecutor to explain its purpose and without cautioning the jury that evidence of this nature could not be used as substantive proof of the existence of a conspiracy. In his summation, the prosecutor additionally sought to impress the jury with the significance of the guilty plea by stating:

(A) young man named Joseph Cicala pleaded guilty to conspiring to break, enter

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and commit larceny inside the Bruno home. They (the defendants) said it never happened, you see. Mr. Cicala pleaded guilty to something that didn't happen.

Ladies and gentlemen, isn't your intelligence being insulted by an argument like that? I mean, aren't these defendants talking down to you as if you were a bunch of five year old children?

Quoted in State v. Stefanelli, 153 N.J.Super. 452, 458, 380 A.2d 276, 279 (1977) (emphasis added). Bisaccia appealed his conviction, along with his co-defendants, to the Appellate Division of the New Jersey Superior Court. In his brief, Bisaccia alleged numerous grounds for reversal, among them the introduction of the Cicala guilty plea without limiting instruction and the prosecutor's subsequent comments. He argued that the cumulative effect of these errors impermissibly prejudiced his case:

An accused is not entitled to a trial perfectly free from all error, but he is entitled as a constitutional right to a fair trial and it is respectfully urged that the manner in which the court below conducted this hearing did not begin to render the defendants a fair trial.

Brief to the New Jersey Superior Court, Appellate Division at 37, reprinted in App., at 44a (emphasis added) (hereafter Appellate Division Brief).

The Appellate Division agreed with the appellant's attack on the unrestricted admission of the guilty plea, finding that "(i)t is fairly apparent that the testimony of Cicala with respect to the guilty plea was used for the purpose of impressing the jurors of the existence of the conspiracy." 153 N.J.Super. at 459, 380 A.2d at 279. On the basis of the "prejudicial error inherent in the admission of such testimony," the Appellate Division concluded that the trial court " 'deprived the defendant of a very substantial protection to which he was entitled.' " Id. at 459, 380 A.2d at 279, 280, quoting United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949).

The New Jersey Supreme Court then granted certification on the issue of the guilty plea testimony. The court addressed the appellant's constitutional argument in terms of the Sixth Amendment confrontation right and, because of the availability of cross-examination, found no violation. While finding that the trial court erred in failing to issue cautionary instructions to the jury regarding the testimony, the court held nevertheless that the error "did not have a clear capacity to produce an unjust result" and was harmless. State v. Stefanelli, 78 N.J. 418, 437, 396 A.2d 1105, 1114 (1979). The question of harmless error was answered in terms of New Jersey evidentiary law. Bisaccia's conviction was reinstated. His habeas corpus petition to the district court was denied and this appeal followed. The district court based its denial of the habeas corpus petition on the grounds that the appellant failed to exhaust his remedies in the state court system and that the error alleged did not violate the United States Constitution. We disagree.


The requirement, embodied in 28 U.S.C. § 2254(b), that state remedies must be completely exhausted before federal courts will grant habeas corpus relief is well settled. 1 Ex Parte Royall, 117 U.S. 241, 253, 6 S.Ct. 734, 741, 29 L.Ed. 868 (1886). The United States Supreme Court has more recently articulated a standard for determining what constitutes sufficient exhaustion. In Fay v. Noia, 372 U.S. 391, 428, 83 S.Ct. 822,

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9 L.Ed.2d 837 (1963), the Supreme Court held that a "federal claim must be fairly presented to state courts." In determining what constitutes a fair presentation, the Supreme Court has required that the claim presented to the state court be the "substantial equivalent" of the claim asserted in a federal habeas corpus petition. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). The Court in Picard carefully noted that "(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." Id. A determination of whether the substance of the appellant's claim was advanced in the state proceedings requires "a searching scrutiny by the federal habeas court of the points that were raised in the state tribunals, in order to ensure that the state system was granted a fair opportunity to confront arguments that are propounded to the federal habeas courts." Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976) (en banc).

The district court found Bisaccia's presentation of issues to the New Jersey courts dissimilar to those presented in his petition for federal habeas corpus. It held that he failed to present his constitutional arguments to the state courts and thus the state courts did not have a fair opportunity to consider the constitutional implications of the trial court's error. The district court opinion notes that the only "constitutional" reference made by appellant before the New Jersey courts was the "cryptic" argument that "he is entitled as a constitutional right to a fair trial." Appellate Division Brief, App., at 44a. The appellee further points out that not even the federal constitution was specified by the appellant. Moreover, it is suggested that this vague reference addressed not only the issue of the use of the guilty plea but also the alleged bias of the trial judge and the violation of the rules of pretrial discovery. In support of its contention that the appellant's claim was not fairly presented, the appellee relies on Wilson v. Fogg, 571 F.2d 91, 94 (2d Cir. 1978), which held that the failure to raise a constitutional violation altogether, but with a citation to cases addressing a particular issue...

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