Bisaccia v. Attorney General of State of N. J.

• Decision Date: 12 June 1980
• Docket Number: No. 79-2040,79-2040
• Citation: 623 F.2d 307
• Parties: BISACCIA, Robert, Appellant, v. The ATTORNEY GENERAL OF the STATE OF NEW JERSEY.
• Court: U.S. Court of Appeals — Third Circuit

Page 307

623 F.2d 307

BISACCIA, Robert, Appellant, v. The ATTORNEY GENERAL OF the STATE OF NEW JERSEY.

No. 79-2040.

United States Court of Appeals, Third Circuit.

Argued March 17, 1980.

Decided June 12, 1980.

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. ^*

OPINION OF THE COURT

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.

I.

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 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.

II.

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 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 in constitutional terms, "hardly amounts to providing the state courts with the 'fair opportunity' to weigh the constitutional claim required by Picard . . .." Although these arguments are not totally without merit, we nevertheless conclude that the appellant's broadly alleged constitutional argument, together with the repeated assertion that he was denied a fair trial, is enough to satisfy the exhaustion requirement. In Zicarelli v. Gray, this court noted that in order to determine whether the "same claim" or the "subsequent equivalent" of the claim has been previously presented to the state courts, it is necessary to ask whether the "method of analysis" asserted in the federal courts was readily available to the state court. 543 F.2d at 472.

In reversing the appellant's conviction, the Appellate Division, relying on United States v. Toner, 173 F.2d 140 (3d Cir. 1949), explicitly concluded that Bisaccia's trial was so wrought with unfairness as to require setting aside the verdict of the jury. "Because of the error . . . relating to the testimony of Cicala with respect to his guilty plea to the conspiracy charge, we find defendants to have been prejudiced to the extent that they were denied a fair trial." 153 N.J.Super. at 460, 380 A.2d at 280. While the Appellate Division did not cite to the Fourteenth Amendment in its reversal, its "method of analysis" was consistent and synonymous with the classic findings required for Fourteenth Amendment due process violations:

It 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. After all, an individual would not plead guilty to a conspiracy that did not exist. We believe even the inference to be drawn from this testimony created prejudice which had to affect the outcome of the trial. In addition, no limiting instruction was given by the trial judge so that the jurors were permitted to use Cicala's testimony as they pleased.

153 N.J.Super. at 459, 380 A.2d at 279 (emphasis added).

Although the New Jersey Supreme Court majority apparently believed there to be no such unfairness, it nevertheless pursued a method of analysis consistent with Fourteenth Amendment due process determinations:

(A) guilty plea of one person as such cannot be...