897 F.2d 661 (3rd Cir. 1990), 89-5504, Landano v. Rafferty

Docket Nº:Department and Perth Amboy Police Department, Petitioners No. 89-5504,
Citation:897 F.2d 661
Party Name:Vincent James LANDANO, Respondent, 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, Kearney Police Department, Newark Police Department, Jersey City Police
Case Date:February 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 661

897 F.2d 661 (3rd Cir. 1990)

Vincent James LANDANO, Respondent,

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, Kearney Police

Department, Newark Police Department, Jersey City Police

Department and Perth Amboy Police Department, Petitioners No. 89-5504,

Honorable H. Lee Sarokin, U.S. District Court Judge, Nominal

Respondent.

Vincent James LANDANO

v.

John J. RAFFERTY, Superintendent, Rahway State Prison,

and

Irwin I. Kimmelman, Attorney General of the State of New Jersey.

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, Kearney Police Department,

Newark Police Department, Jersey City Police Department and

Perth Amboy Police Department.

Appeal of John J. RAFFERTY, Superintendent, East Jersey

State Prison, and Peter N. Perretti, Jr., Attorney

General of New Jersey, in Nos. 89-5625

and 89-5638.

Nos. 89-5504, 89-5625 and 89-5638.

United States Court of Appeals, Third Circuit

February 27, 1990

Argued Dec. 12, 1989.

As Amended March 1, 1990.

Rehearing and Rehearing In Banc Denied April 3, 1990.

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Peter N. Perretti, Jr., Atty. Gen. of N.J., Richard J. Hughes Justice Complex, Trenton, N.J., for appellants.

Carol M. Henderson (argued), Catherine A. Foddai, Richard W. Berg, Deputy Attys.

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Gen., Div. of Criminal Justice, Appellate Section, Trenton, N.J., for petitioners-appellants.

Nancy Erika Smith (argued), Neil Mullin, Kevin Kiernan, Jon W. Green, Smith, Mullin & Kiernan, West Orange, N.J., for respondent-appellee.

Before HUTCHINSON, COWEN and ROSENN, Circuit Judges.

OPINION

COWEN, Circuit Judge.

The various appellants-petitioners in this action, whom we will refer to collectively as "the State of New Jersey," appeal an order of the district court conditionally granting the petition of Vincent James Landano ("Landano") for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982). The writ was issued incident to Landano's successful motion under Fed.R.Civ.P. 60(b) for relief from an earlier judgment of the district court denying his petition. Landano's 60(b) motion, which in effect renewed his initial petition and raised additional claims, was premised on alleged prosecutorial fraud. Because we find that Landano has not satisfied the exhaustion requirement of section 2254 with respect to certain additional claims he has raised in his 60(b) motion, we will reverse the district court's order granting the conditional writ, and remand with directions to dismiss the petition and vacate all orders entered subsequent to the court's initial order denying Landano's petition.

I.

On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearney, New Jersey ("the Kearney robbery"). 1 During the robbery, one of the gunmen shot and killed a Newark police officer. A Hudson County grand jury indicted Landano and three other men, Allen Roller ("Roller"), Victor Forni ("Forni") and Bruce Reen ("Reen"), for felony murder and other crimes stemming from the robbery. The trial of Forni and Reen was severed from that of Landano and Roller. However, prior to the commencement of the Landano and Roller trial, and pursuant to a plea agreement with the prosecutor, Roller pled non vult to the felony murder charge and testified against Landano.

Evidence at Landano's trial showed that the Kearney robbery was the work of a motorcycle gang known as "The Breed." According to the testimony of Breed members and affiliates, the gang frequently planned and executed armed robberies in the Staten Island area. The evidence also revealed that Roller, the president of The Breed's Staten Island chapter, and Forni, who was not a Breed member but reputedly responsible for organizing most of The Breed's criminal activities, conceived of the plan to rob the Hi-Way Check Cashing Service.

It was undisputed that Landano was neither a Breed member nor affiliate. However, Roller testified that Landano was specifically recruited for the Kearney job because he was a friend of Forni. Roller insisted at trial that although Forni had orchestrated the robbery, Forni did not participate in the actual execution of the crime.

According to the testimony at the trial, two men arrived at the Hi-Way Check Cashing Service in the early morning hours of August 13. One of the perpetrators entered the Service's trailer/office, while the other remained outside. During the robbery, Officer John Snow pulled into the parking lot in his patrol car. The perpetrator who had remained outside walked up to the patrol car and shot Officer Snow at close range, killing him. The two perpetrators then sped off in a green Chevrolet.

Landano was linked to the crime through the testimony of several witnesses. Roller testified that he and Landano were the perpetrators and that he was the individual who had entered the trailer while Landano

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remained outside. Roller also told the court that Landano informed him later that he had to "ice" or "waste" the police officer.

Jacob Roth ("Roth"), the owner of Hi-Way Check Cashing Service, also identified Landano as a participant in the robbery, but Roth testified that Landano had been the individual who entered the trailer, not the one who remained outside. In addition, Roth was able to observe the license plate of the automobile used by the perpetrators.

Joseph Pascuiti ("Pascuiti"), an employee of an adjacent warehouse, testified that he observed from his workplace window a dark haired man approach Officer Snow's patrol car. However, Pascuiti then turned away from the window. When he heard gunshots and again focused his attention on the parking lot, Pascuiti saw a green Chevrolet, driven by the same dark haired man who had approached the patrol car, pulling hurriedly out of the parking lot. Pascuiti was unable to identify the dark haired man as Landano.

In attempting to escape from the crime scene, the perpetrators came upon a blocked intersection. The efforts of the driver to maneuver through the traffic attracted the attention of Raymond Portas ("Portas"), a truckdriver sitting in the stalled traffic. Portas testified that he saw a green Chevrolet pull out of the line of traffic and proceed along adjacent railroad tracks. Portas' description of the license plate number matched Roth's. At trial, Portas was able to identify Landano as the driver of the car. Furthermore, Portas stated that he had also picked Landano's photograph out of an array shown to him at a pre-trial identification session.

Thus, the evidence at Landano's trial linking him to the crime included: Roller's testimony naming Landano as his partner; Roth's identification of Landano as the participant who entered the trailer; Pascuiti's testimony that the killer of Officer Snow was the driver of the green Chevrolet; and Portas' testimony that the driver of the green Chevrolet was Landano. After approximately two days of deliberations, the jury informed the court that it was unable to reach a unanimous verdict on any of the submitted counts. At that point, the court delivered a supplemental charge and ordered the jurors to continue their deliberations. One hour later the jury returned a verdict finding Landano guilty on all counts. On May 17, 1977, Landano was sentenced to life imprisonment on the felony murder count and a consecutive term of seven to fifteen years on the remaining counts.

Landano filed a Notice of Appeal on June 29, 1977. On September 26, 1978, Landano also filed a motion in the Superior Court of New Jersey, Appellate Division, seeking remand to the trial court for consideration of his motion for a new trial. The motion was based on three grounds: (1) Roller's alleged prison recantation in which he allegedly told two other prisoners that he had committed the Kearney robbery with someone other than Landano; (2) newly discovered evidence allegedly linking Forni to a Jersey City robbery that Roller had admitted committing at Landano's trial, but with someone other than Forni; (3) and a Brady 2 claim alleging that the prosecutor had suppressed evidence possibly linking Roller, Forni and Reen to one or two Perth Amboy robberies occurring sometime prior to the Kearney holdup.

An order granting Landano's motion was entered on October 17, 1978. Three days of evidentiary hearings were then held by the trial court, after which Landano's motion was denied. The Appellate Division subsequently both denied Landano's direct appeal and affirmed the trial court's denial of his motion for a new trial. Landano's petition for certification was denied by the New Jersey Supreme Court.

On March 31, 1982, Landano filed a petition for post-conviction relief. According

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to Landano, the issues raised in this petition were the following:

(1) Whether [the trial court's] "Allen" charge 3 required vacation of the conviction.

(2) Whether newly discovered evidence as to [the] coercion of ... Roth in obtaining identification testimony against Landano required vacation of the conviction.

(3) Whether newly discovered evidence that the prosecutor had coached ... Portas in obtaining his photographic and in-court identification of ... Landano required vacation of the conviction.

(4) Whether newly discovered evidence that the State had concealed [Officer] Snow's connection to ... Roller and that ... Roller had perjured himself at trial about such connection...

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