Fell v. Rafferty, Civ. A. No. 88-3152.

• Decision Date: 04 May 1990
• Docket Number: Civ. A. No. 88-3152.
• Citation: 736 F. Supp. 623
• Parties: Alberto FELL, Petitioner, v. John J. RAFFERTY, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

736 F. Supp. 623

Alberto FELL, Petitioner, v. John J. RAFFERTY, et al., Respondents.

Civ. A. No. 88-3152.

United States District Court, D. New Jersey.

May 4, 1990.

Alberto Fell, Rahway, N.J., pro se.

Robert J. Del Tufo, Atty. Gen. of New Jersey by Arthur S. Safir, Div. of Crim. Justice, Trenton, N.J., for respondents.

OPINION

WOLIN, District Judge.

Petitioner, Alberto Fell, currently incarcerated at the East Jersey State Prison, has brought a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ In support of his application, petitioner alleges (1) that the failure of the prosecutor to reveal a secret arrangement for leniency with the State's key witness violated petitioner's Fourteenth Amendment due process guarantees under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that this newly discovered evidence warrants relief; (2) that the State improperly refused to grant a retrial after newly discovered exculpatory evidence was uncovered; and (3) that prejudicial remarks made by the prosecutor during opening statements violated petitioner's Sixth Amendment right to a fair trial.

I. FACTS AND PROCEDURAL HISTORY

In February 1975, Jose Fernandez entered an FBI office in Miami, Florida and gave a statement implicating petitioner Alberto Fell in the kidnapping and murder of Claudio Mayans. According to Fernandez, he was told by Fell on August 30, 1974 that Fell and Benigno Mas had been shooting victims of an individual known as "Embasor." Mas was at that time in the hospital recovering from his gunshot injuries. A few weeks later, accompanied by Fell, Fernandez drove to the hospital to pick up Mas.

After leaving the hospital, Fell instructed Fernandez to stop at a bar. Fell entered the bar and returned with Claudio Mayans. The four men then drove to an apartment where Fell and Mas fed Mayans narcotics and interrogated him concerning Embasor's attempts on their lives. After an hour and a half of questioning to no avail, Fell handcuffed Mayans' hands behind his back and instructed Fernandez to drive the four of them to the New Jersey Turnpike. Around midnight, Fell commanded Fernandez to stop on the side of the highway. Fell then removed an automatic pistol with a silencer from the vehicle and led Mayans to an embankment. Fernandez observed the flashes of four or five shots fired at the victim.

Fell reentered the vehicle and instructed Fernandez to return to New York, warning him that "whoever said anything was dead." T288-23 to 25. Fell, Mas, and Fernandez returned to an apartment where Fernandez was told why Mayans had been killed. Apparently, Mayans had been hired to murder Embasor for $3000, with a $200 advance payment, but had failed to perform the agreement. Fernandez witnessed Fell secrete the murder weapon in a hidden bathroom drawer. According to Fernandez, Fell and Mas forcibly detained him in the apartment for several days until he was able to escape.

In December 1974, Fernandez met Fell in a gambling house at which time Fell threatened his life if he ever informed anyone of the murder. Fernandez went to Miami where he telephoned Fell on February 9, 1975, pleading to be left alone. During this conversation, Fell told Fernandez that he believed he was a police informer and therefore would be killed. On February 26, 1975, Fernandez made his statement to the FBI.

On September 18, 1974 the New Jersey State Police discovered the body of Claudio Mayans lying at the bottom of an embankment off the New Jersey Turnpike. The victim's arms were handcuffed behind his back and forensic experts determined that he had died from several gunshot wounds inflicted at close range by a firearm with a silencer.

The police had no leads in the murder investigation until Fernandez volunteered his statement to the FBI. Fernandez, Fell, and Mas were subsequently indicted for kidnapping and murder. A search of the apartment identified by Fernandez revealed the secret compartment that contained the gun Fernandez had watched Fell hide. Consistent with Fernandez's story, it was later discovered that Fell bore a scar from an old gunshot wound.

In October 1975, Fell was tried and convicted of kidnapping and murder in Middlesex County, New Jersey. He was sentenced to life imprisonment for the murder charge and to a concurrent 30 year to life term on the kidnapping charges. Fell unsuccessfully appealed his conviction to the Appellate Division of the New Jersey Superior Court and certification to the New Jersey Supreme Court was denied in September 1977. Jose Fernandez was never tried on the outstanding charges and in April 1977 the State of New Jersey dismissed the indictment against him.

Petitioner first sought state post-conviction relief in November 1980 on the grounds of inadequate trial translation procedures. Relief was denied. In May and June 1983, petitioner sought state post-conviction relief on the grounds that newly discovered evidence of a secret agreement between Fernandez and the State warranted a new trial. After holding a hearing on the issue, the Superior Court denied petitioner's motion. This decision was affirmed on appeal; certification to the New Jersey Supreme Court was denied in 1987.

In October 1985, Fell sought a new trial on the grounds that newly discovered evidence implicated Jose Fernandez in the murder of Mayans. Pastore Vasquez, a New Jersey State inmate, claimed that Fernandez had confessed to the murder. At a hearing held in December 1985 it was determined that Vasquez's testimony was incredible. Fell's motion for a new trial was denied. The denial was upheld on appeal, and certification was denied in 1987.

Fell filed the present petition for habeas corpus on July 15, 1988.

II. DISCUSSION

A. Prejudicial Delay

The State argues that Fell's 13-year delay in filing the present petition constitutes prejudicial delay and warrants dismissal of the petition. Rule 9(a) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 provides:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

The State, relying upon Davis v. Adult Parole Authority, 610 F.2d 410, 414-415 n. 12 (6th Cir.1979), argues that a presumption of prejudice to the State arises if the petition is filed more that five years after judgment of conviction. The Court disagrees and finds this argument against the weight of authority.

The Davis court relied primarily upon the Advisory Committee Notes in reaching its decision. 610 F.2d at 414-415 n. 12. The Advisory Committee stated: "If delay is more than five years after the judgment of conviction, prejudice is presumed, although this presumption is rebuttable by the petitioner." Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, Rule 9 advisory committee note. This Advisory Committee opinion does not control the result here and the Court finds it contrary to the clear intent of Congress.

Congress rejected the promulgators' proposal to place a presumptive five-year deadline on petitions and took a position contrary to the advisory committee. Citing to Supreme Court decisions to the same effect, Congress expressed its intent to codify existing caselaw and rejected such presumptions. H.R.Rep. No. 1471, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 2478, 2481-82. See Lawrence v. Jones, 837 F.2d 1572, 1575 (11th Cir.1988) (Congress deleted five year presumption from rule, finding it to be unsound and inconsistent with prior case law); Berry v. Mintzes, 726 F.2d 1142, 1146 (6th Cir.), cert. denied, 467 U.S. 1245, 104 S.Ct. 3520, 82 L.Ed.2d 828 (1984); LaLande v. Spalding, 651 F.2d 643, 644 (9th Cir.), cert. denied, 452 U.S. 965, 101 S.Ct. 3119, 69 L.Ed.2d 978 (1981); Mayola v. Alabama, 623 F.2d 992 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981). The Supreme Court has historically rejected strict time limitations in the habeas context. Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, 454, 3 L.Ed.2d 407 (1959) (Stewart, J., concurring) (laches doctrine not applicable in habeas insofar as it sometimes permits denial of relief based solely on passage of time); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 123, 76 S.Ct. 223, 227, 100 L.Ed. 126 (1956) (lapse of 8 years does not require dismissal); United States v. Smith, 331 U.S. 469, 475, 67 S.Ct. 1330, 1333, 91 L.Ed. 1610 (1947) (habeas corpus provides remedy without limit of time). See also Baxter v. Estelle, 614 F.2d 1030, 1032-33 (5th Cir.1980), cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1981) (traditional rule requiring State to show that delay was unreasonable and prejudicial still applies under Rule 9(a)).

Under Rule 9(a), a petition may be dismissed if three conditions are met: (1) the State must plead and prove that the petitioner unreasonably delayed setting in motion the course of judicial events necessary to bring the petition before the federal courts; (2) the State must plead and prove, with particularity, that the delay prejudiced the state; (3) if the State meets its aforementioned burdens, the petitioner can avoid dismissal under Rule 9(a) if he pleads and proves that the petition is based upon "grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances of prejudice to the state occurred." Fed.R.Civ.P. 9(a). See Campas v. Zimmerman, 876 F.2d 318 (3d Cir.1989); Lawrence v. Jones, 837 F.2d 1572 (11th Cir.1988); Liebman, Federal Habeas Corpus Practice and Procedure 327-332 (1988) (collecting cases).

Applying the requirements of Rule 9(a) to the present case, this Court finds no...