970 F.2d 1230 (3rd Cir. 1992), 91-5336, Landano v. Rafferty

Docket Nº:91-5336, 91-5337 and 92-5357.
Citation:970 F.2d 1230
Party Name:Vincent James LANDANO v. John J. RAFFERTY, Superintendent, Rahway State Prison, Irwin I. Kimmelman, Attorney General of the State of New Jersey. State of New Jersey, John J. Rafferty, Superintendent, East New Jersey State Prison, Robert Del Tufo, Attorney General of State of New Jersey, Appellants. Vincent James LANDANO v. John J. RAFFERTY, Superin
Case Date:July 16, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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970 F.2d 1230 (3rd Cir. 1992)

Vincent James LANDANO


John J. RAFFERTY, Superintendent, Rahway State Prison, Irwin

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

State of New Jersey, John J. Rafferty, Superintendent, East

New Jersey State Prison, Robert Del Tufo, Attorney

General of State of New Jersey, Appellants.

Vincent James LANDANO


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; Kearny Police

Department, Newark Police Department, Jersey City

Police Department, and Perth Amboy

Police Department,

State of New Jersey, John J. Rafferty, Superintendent East

New Jersey State Prison, Robert Del Tufo, Attorney

General of State of New Jersey, Appellants.

John J. RAFFERTY, Superintendent, East New Jersey State

Prison, and Robert Del Tufo, Attorney General of

the State of New Jersey, Appellants,


Vincent James LANDANO.

Nos. 91-5336, 91-5337 and 92-5357.

United States Court of Appeals, Third Circuit

July 16, 1992

Argued Dec. 12, 1991.

Rehearing and Rehearing In Banc

Denied Aug. 11, 1992.

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Susan B. Gyss (argued), Jeffrey Ziegelheim, Asst. Prosecutors, Paul M. De Pascale, Prosecutor of Hudson County, Office of Hudson County Prosecutor, Jersey City, N.J., for appellants.

Neil M. Mullin (argued), Smith, Mullin & Kiernan, P.C., West Orange, N.J., for appellee.

Before: SLOVITER, Chief Judge, SCIRICA and ROTH, Circuit Judges.


SLOVITER, Chief Judge.

This is the fourth time that this court has before it an aspect of the efforts by plaintiff-petitioner Vincent James Landano seeking a writ of habeas corpus awarding a new trial. Landano was convicted in 1977 in New Jersey state court on a charge of felony murder of a police officer during the course of the robbery of a check-cashing establishment in New Jersey. In previous appeals to this court, we affirmed the district court's denial of a writ of habeas corpus, Landano v. Rafferty, 856 F.2d 569 (3d Cir.1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989); reversed the district court's subsequent grant of a conditional writ of habeas corpus because we concluded Landano had failed to exhaust state remedies, Landano v. Rafferty, 897 F.2d 661 (3d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990); and, most recently, in related litigation, affirmed in part and reversed in part the district court's order granting Landano's request for certain information under the Freedom of Information Act in which Landano seeks to uncover potentially exculpatory material. See Landano v. United States Dep't. of Justice, 956 F.2d 422 (3d Cir.1992). 1

The present appeals are by defendants John J. Rafferty, Superintendent of East New Jersey State Prison, and Robert Del Tufo, Attorney General of the State of

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New Jersey, (collectively referred to as "the State") from two orders granting bail to Landano. The first order granting bail to Landano pending review of his petition for habeas corpus was entered by the district court on May 3, 1991. We heard argument on these appeals on December 12, 1991.

On February 4, 1992, while the appeal was sub judice, the district court ruled on matters previously pending before it, and issued an order denying the State's motion to dismiss Landano's petition for failure to exhaust, staying the petition for habeas corpus pending exhaustion in the state courts, and, as most relevant here, continuing Landano's enlargement on federal bail pending exhaustion of state remedies. Landano v. Rafferty, 782 F.Supp. 986 (D.N.J.1992). The State sought to appeal this order by filing a petition for permission to appeal. We hold that there was insufficient legal basis for the district court's bail orders, and reverse.



This case has a long and complicated procedural history which is set forth in detail in this court's prior opinions, as well as in district court opinions 2 which in turn relied on state court opinions. We will recount the facts only insofar as they are relevant to the issues before us.

On August 13, 1976, in the course of a robbery of the Hi-Way Check Cashing Service in Kearny, New Jersey, by two gunmen, one gunman killed Newark Police Officer John Snow. A Hudson County grand jury indicted Landano along with Allen Roller, Victor Forni, and Bruce Reen, for felony murder, armed robbery, and other offenses related to the incident. The day before the scheduled trial of Roller and Landano, Roller pled non vult to the felony murder charge and entered into a plea agreement with the Hudson County Prosecutor to testify against Landano at trial. Roller's testimony was highly damaging to Landano.

Roller testified at trial that the robbery was masterminded by a motorcycle gang known as "The Breed," which frequently organized robberies in the area around Staten Island, New York, and that Landano, although not a Breed member or affiliate, was recruited specifically for the Kearny robbery at Forni's suggestion. Roller stated that when he and Landano arrived at the Hi-Way Check Cashing Service trailer early in the morning of August 13, 1976, Roller went to the window of the trailer and forced his way inside while Landano waited outside. Meanwhile, Officer Snow arrived in a patrol car at the Hi-Way parking lot carrying an attache case containing $46,000 in cash which was to be delivered to the check-cashing establishment. Roller testified that after he took the cash drawer of the check-cashing establishment at gunpoint, he saw Landano running from a police car carrying an attache case. When he and Landano got in the car after the event, Landano stated that he had to "ice [or waste] the cop." Landano, 670 F.Supp. at 574.

Joseph Pascuitti, an employee of an adjacent warehouse, testified that he saw a dark-haired man approach Officer Snow's patrol car, that a moment later he heard gunshots, and that when he turned back, he saw a green Chevrolet pull away with the same dark-haired man driving. Pascuitti described the dark-haired man as having curly hair; he was not able to identify Landano as that man.

The attempt of the perpetrators to maneuver away from the crime scene in snarled traffic caught the attention of Raymond Portas, a truck driver stopped at an intersection. He testified that Landano was driving the car, but he was unable to identify Roller. This was the bulk of the evidence presented at Landano's trial linking

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him to the murder of Officer Snow. Id. at 574-75.

In May 1977, Landano was found guilty on all counts and was sentenced to life imprisonment and a consecutive seven to fifteen year term for the other offenses. 3 In June 1977, Landano filed a notice of appeal. In October 1978, Landano obtained an order remanding the case to the trial court for consideration of a motion for a new trial on the basis of newly discovered evidence. Judge Maurice A. Walsh Jr., J.S.C., found, after a hearing, that the knowledge of evidence of prior robberies carried out by Roller and Forni could be imputed to the prosecutor, that it had been suppressed, and that had it been revealed at trial it " 'would have been probative in demonstrating, if Roller denied Forni's participation [in those robberies], that Roller was protecting Forni.' " Id. at 585 (quoting Opinion of Judge Walsh, December 1, 1978, Appendix Vol. I, at 36A). Nevertheless, the court concluded that the evidence, although "exculpatory," was not "material" within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), 4 because the outcome of the trial would not have been different had it been revealed. The trial court thus denied the motion for a new trial. The Superior Court of New Jersey, Appellate Division, both affirmed that denial and denied Landano's direct appeal, and the New Jersey Supreme Court denied certification in July 1980.

Landano subsequently filed for post-conviction relief in state court in March 1982, based on, inter alia, a recantation by Raymond Portas, the truck driver who had positively identified Landano, and another Brady claim. The details of Portas's recantation and the reasons therefor are fully set forth by the district court in Landano, 670 F.Supp. at 574-84. Hearings on these claims were conducted in June, September, October, and November of 1982 before Judge Joseph P. Hanrahan, J.S.C. Portas testified that he had failed to identify Landano from a photo display on the day of the crime but nevertheless, on April 15, 1977, eight months later, he initialed the back of a photograph of Landano after the detective stated " '[t]hat's the man we want.' " Id. at 576. Portas claimed that he had picked out a different photograph (possibly of Victor Forni, see id. at 578-79 n. 5) which the prosecutor handed to someone who took it out of the room. Portas also stated at the post-conviction hearing that when he was in the courthouse right before trial, a detective told him that Landano had passed them in the hallway and stated " 'that's our man.' " Id. at 577. Portas testified that he had not recognized Landano.

The state trial court denied the relief, finding Portas's recantation untrustworthy. See id. at 577-78. In January 1984 the Appellate Division denied Landano's appeal of that finding and in June 1984, the New Jersey Supreme Court denied certification.

Landano filed his first petition for habeas corpus in federal district court in New Jersey in October 1985, claiming a violation of his due process right to a fair trial based on Portas's recantation and the Brady claims he had raised...

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