Landano v. Rafferty, Civ. No. 91-1881 (HLS).

• Decision Date: 04 February 1992
• Docket Number: Civ. No. 91-1881 (HLS).
• Citation: 782 F. Supp. 986
• Parties: Vincent James LANDANO, Petitioner, v. John J. RAFFERTY, Superintendent East New Jersey State Prison, and Robert Del Tufo, Attorney General of the State of New Jersey, Respondents.
• Court: U.S. District Court — District of New Jersey

782 F. Supp. 986

Vincent James LANDANO, Petitioner, v. John J. RAFFERTY, Superintendent East New Jersey State Prison, and Robert Del Tufo, Attorney General of the State of New Jersey, Respondents.

Civ. No. 91-1881 (HLS).

United States District Court, D. New Jersey.

February 4, 1992.

Neil Mullin, Smith, Mullin & Kiernan, P.C., West Orange, N.J., for petitioner.

Susan B. Gyss, Asst. Prosecutor, Office of the Hudson County Prosecutor, Jersey City, N.J., for respondents.

OPINION

SAROKIN, District Judge.

This case is a testament to the principle "Justice Delayed is Justice Denied." We must ask ourselves why the current clamor and rush to carry out death sentences, but no similar urgency in freeing one who might be wrongly convicted and confined.

Vincent James Landano has been up and down the judicial ladder enough times to exhaust anyone and destroy their spirit. Nonetheless, he has been ordered to resume the journey once again on the grounds that his current claims upon which this court granted him habeas corpus relief must receive further review by the state courts.

The futility and delay engendered by that process are self-evident. Either the state court will grant the relief which this court previously granted or, failing same, this court will do so when the matter is returned to it — the same facts and law being presented. Thus, the petitioner, some one or two years hence, will be in the same position he was in on July 27, 1989, the day this court granted his petition. Then most certainly the appeals on the merits will commence.

Here is a man who has served over twelve years in prison and almost as many fighting for his freedom in our justice system. If one's liberty, once unconstitutionally taken, can only be restored after so many years of confinement and confoundment, then the Great Writ will be rendered worthless. Rather than crying out for speedy executions for those who have been convicted of capital crimes, we should be crying out for the prompt release of those who may have been wrongly convicted and confined — cries of freedom rather than death.

And now, despite all of the questions raised about the petitioner's guilt and the prosecution's conduct, the State moves to have the petitioner returned to custody pending resolution of the state proceedings, by seeking dismissal of Landano's pending petition for habeas corpus relief.

Background

The factual and procedural histories of this case are long and complex. They have also been set out at length in previous opinions of this court and the Third Circuit issued at earlier stages of the present litigation.¹ The court therefore incorporates its discussion of the factual and procedural background of this case in its opinions of July 27, 1989, May 2, 1991, and May 6, 1991.

It will be useful, however, to review briefly recent procedural events in this action to provide a context for the pending motion. After unsuccessfully pursuing a motion for a new trial and a petition for post-conviction relief in the state courts, petitioner Landano ("Landano") filed a petition for a writ of habeas corpus in this court. On September 29, 1987, this Court denied relief to petitioner, 670 F.Supp. 570 (D.N.J.1987), reconsideration denied, 675 F.Supp. 204 (D.N.J.1987), the Court of Appeals affirmed this decision, 856 F.2d 569 (3d Cir.1988), and the United States Supreme Court denied certiorari. 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989).

On June 8, 1989, petitioner sought and was granted an ex parte order by this court for the seizure of state files relating to this case. Based on information discovered in the seized files, Landano filed an Order to Show Cause with this court why a writ of habeas corpus should not issue. The court granted Landano's motion to reopen the court's prior judgment, pursuant to Rule 60(b)(6), 126 F.R.D. at 638, found that Landano had satisfied his exhaustion requirements, Id. at 644, vacated its order denying Landano's petition, and issued a conditional writ of habeas corpus. Id. at 654. The court found that:

New information has been presented to the court which demonstrates that evidence which may have exculpated the petitioner and inculpated another had been systematically withheld from the petitioner and his counsel.

Id. at 630. This information included a handwritten document from police files, indicating that two witnesses, one of whom testified for the prosecution at trial, had been shown only a photograph of Landano and failed to identify him as the perpetrator ("the ID on Landano"); and a police department continuation report stating that a witness picked out a photograph of a different man, whom Landano had contended at trial to have been the perpetrator, as resembling a man seen driving the getaway car ("the Pasapas ID").

This court found that both documents had been suppressed and that either presented a substantial probability that the jury's verdict would have differed had the information contained within them been available to the defense at trial. Relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the court concluded that Landano's Fourteenth Amendment due process right to a fair trial had been violated by the prosecution's failure to turn over these documents, and that the suppression of each of them constituted an independent constitutional violation requiring granting of the writ. 126 F.R.D. at 654 & n. 13.

The Court of Appeals for the Third Circuit reversed this determination, holding that Landano had failed to exhaust his state remedies with respect to the information uncovered in the seized files, and that no exceptional circumstances existed justifying suspension of the exhaustion requirement. 897 F.2d at 674-75. On November 1, 1990, Landano filed a new state petition for post-conviction relief. On November 15, 1990, the Supreme Court of New Jersey issued a stay of the arrest order for Landano, pending disposition of Landano's petition for post-conviction relief.

On February 4, 1991, defendants John J. Rafferty, Superintendent, East New Jersey State Prison, and Robert Del Tufo, Attorney General of the State of New Jersey, (collectively, "the State") filed an answer opposing Landano's petition. The grounds for their opposition, however, is disputed. Landano contends that defendants took the position that no state remedies were available to Landano for any of the issues addressed in his petition because all of them had been exhaustively litigated in prior state proceedings; the State now denies it argued that Landano had exhausted his state remedies. In a letter dated February 7, 1991, Landano indicated that he had argued before the Third Circuit that his state remedies were exhausted, but felt compelled by the Third Circuit's mandate to seek a plenary hearing in state court. By letter dated February 7, 1991, the state responded, claiming that its prior submissions had not asserted that Landano had presented all his claims to the state court previously.

On March 8, 1991, the Honorable Maurice A. Walsh, Jr., J.S.C., dismissed Landano's petition without an evidentiary hearing. Landano contends that Judge Walsh's dismissal was based on a factual finding that all the claims Landano raised were barred as having already been litigated in the state courts. Based upon his view that this decision fulfilled the Third Circuit's mandate to exhaust his state remedies, Landano filed in this court on March 11, 1991 an order to show cause why a writ of habeas corpus should not issue, which this court treated as a new petition for habeas relief. Supplemental Opinion, No. 91-1881, Slip Op. at 3 (D.N.J. May 6, 1991) (Pet.Ex. at 1096A).

On March 12, before the scheduled hearing was to occur before this court, the State filed a notice of motion seeking a rehearing before Judge Walsh on the grounds that his prior decision had been defective in not recognizing that there existed a genuine unexhausted factual dispute concerning the "ID on Landano" and "Pasapas ID" documents, entitling Landano to a hearing on the merits. Because of the pendency of the State's motion for a rehearing, this court denied Landano's order to show cause, but did not dismiss the underlying petition. The State then consented on the record that no application would be made to arrest Landano until this Court had an opportunity to rule on his pending application.

On April 8, 1991, Judge Walsh issued a second opinion, in which he stated that he had not previously held that the new issues raised by the "ID on Landano" and the "Pasapas ID" had been barred by previous state court litigation. Letter Opinion, Ind. No. 73-76, Slip Op. at 5-6 (N.J.Super.Ct. April 8, 1991) (Pet.Ex. 1009A-10A). Judge Walsh further stated that his earlier opinion had found, based on a "hearing on the merits," that the "so-called new issues" would not have caused any change in the guilty verdict, even if they were found to have involved prosecutorial misconduct. Id. at Slip Op. 3-4 (Pet.Ex. 1008A-09A). Hence, he stated, his denial of Landano's petition regarding the new issues had been on the merits, not due to their prior litigation. Judge Walsh then denied the state's motion for rehearing or clarification. Landano filed a notice of appeal of Judge Walsh's decision in the Appellate Division on May 14, 1991.

On April 19, 1991, the State moved before the New Jersey Supreme Court to dissolve its stay of the arrest order. On May 1, 1991, the Supreme Court vacated the stay without opinion and ordered that Landano could be arrested as of 5 p.m., May 2, 1991.

The same day, Landano's counsel contacted this court to arrange a hearing, as had been contemplated when the parties appeared before the court on March 12, at which time the state had consented that "no application to place Mr. Landano in custody shall be made until notice has been given to Landano's counsel and an opportunity afforded to him to be heard by this Court." Transcript of Order to...