Hubbard v. Pinchak
| Decision Date | 05 August 2004 |
| Docket Number | No. 00-5150.,00-5150. |
| Citation | 378 F.3d 333 |
| Parties | Frank HUBBARD, Appellant v. Steven PINCHAK; The Attorney General of the State of New Jersey; Peter Verniero. |
| Court | U.S. Court of Appeals — Third Circuit |
Appeal from the United States District Court for the District of New Jersey, Jerome B. Simandle, J.
COPYRIGHT MATERIAL OMITTED
Mary Gibbons (Argued), Toms River, NJ, for Appellant.
Peter C. Harvey, Attorney General of New Jersey, Trenton, Linda K. Danielson (Argued), Deputy Attorney General, Of Counsel and on Brief, Division of Criminal Justice, Appellate Bureau, Trenton, NJ, for Appellees.
Before SLOVITER and FUENTES, Circuit Judges, and POLLAK, District Judge.*
Petitioner Frank M. Hubbard seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He procedurally defaulted his claims in the state courts. He seeks to overcome the procedural default by asserting his "actual innocence," Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), a claim that the District Court rejected. We must therefore examine the scope and contours of the claim of actual innocence as a gateway to consideration of the merits of petitioner's habeas claim notwithstanding the procedural default.
On June 22, 1981 in Camden, New Jersey, David O'Neal1 was killed by a gunshot wound to the face. Thereafter, the State of New Jersey indicted Hubbard on six felony counts, including murder, robbery, conspiracy to commit robbery, and firearms violations. Hubbard pled not guilty to all counts. Also charged as defendants were John Monroe, who entered a guilty plea in exchange for a thirty-year sentence, and Stanley Banks, who was a fugitive at the time of trial.
Monroe testified at trial to the details of the crimes pursuant to a plea agreement with the prosecutor. He stated that he, Hubbard, and Banks met at his residence where they discussed robbing O'Neal, that he assumed Hubbard had a gun because he observed a bulge in Hubbard's front, that Hubbard showed him a gold watch to sell to O'Neal, and that, at Hubbard's direction, Banks drove to O'Neal's. When they arrived, Hubbard handed O'Neal the gold watch, pulled his revolver and, when O'Neal reached for his own gun, Hubbard shot O'Neal in his face. Hubbard and Banks returned to their vehicle and Monroe ran home.
Lorelie Truluck, Monroe's girlfriend, testified that she, Monroe, Hubbard, and Banks drove to O'Neal's place of residence intending to rob him, that the men went into the residence while she remained in the vehicle and did not witness anything related to their entry, but that she saw Hubbard and Banks run back to the vehicle, and that Hubbard instructed someone to drive and wrapped the gun in a towel. Truluck's account was consistent with Monroe's subsequent testimony.
Gary Hammon, the lone eyewitness who was not involved in the incident, also testified. Hammon lived "[r]ight across from" O'Neal and although he did not see the shooting itself, he testified that there were three perpetrators involved, all of whom he saw conversing with each other, and two of whom he saw knock on O'Neal's door. Hammon testified that all the men were black, and that there was a shorter man who was "[f]ive foot something" and a taller man who was "six foot something" or "six foot two." Trial Tr. at 14-15 (Apr. 22, 1982). Hammon testified that when O'Neal opened the door, one of the two men shot him. All three men fled without entering O'Neal's residence. He did not get a good look at any of their faces.
The jury found Hubbard guilty of felony murder and robbery, and not guilty of the handgun possession charges. On July 6, 1982, the state court sentenced Hubbard to life imprisonment with a 25-year parole ineligibility on the felony murder charge, and a 20-year concurrent term on the robbery count.
There was no testimony linking any gun, putatively the murder weapon, to Hubbard and no forensic evidence linking him to the victim or the scene of the crime. Hubbard had filed a Bill of Alibi Particulars before the grand jury charged him in which he stated he was in Atlantic City, New Jersey on the night of the crime, which took place in Camden, New Jersey.
This matter has traveled up and down the state courts of New Jersey, and it is unnecessary to recount the full details here. We will limit the facts to the proceedings necessary to decide this appeal from the District Court's order denying Hubbard's petition for a writ of habeas corpus. Hubbard filed two separate petitions for post-conviction relief (PCR) in the state courts — the first in August 1988, and the second in May 1994. Both were dismissed as untimely, and therefore were procedurally barred by New Jersey state law. Although the Appellate Division of the New Jersey Superior Court agreed that the claims raised in Hubbard's second PCR petition were time barred, it nevertheless stated that it "carefully reviewed each of the seven [claims] and [is] satisfied that there is no basis to grant [Hubbard] relief." App.II at 209.
On July 28, 1997, Hubbard filed a pro se petition for habeas corpus relief in the District Court, raising seven claims that he had set forth in his second PCR petition. They are:
(1) that the indictment against him was based on the perjurious testimony of the arresting detective before the grand jury; (2) that his sentence does not comply with New Jersey sentencing criteria; (3) that the trial court improperly deprived him of his right to cross-examine one of the state's witnesses; (4) that the police violated his Fifth Amendment right to counsel by ignoring his request for an attorney during custodial interrogation; (5) that the trial court gave a prejudicial supplemental jury instruction on the law of accomplices; (6) that the trial court improperly admitted certain photographs into evidence; and (7) that his trial counsel provided ineffective assistance.
The District Court dismissed two of the grounds raised by Hubbard for substantive reasons and they are not at issue in this appeal. The District Court denied the requested writ of habeas corpus on the five other claims because of Hubbard's procedural default, stating, "Petitioner has not argued that he is innocent of the crime for which the jury convicted him," App.I at 10, and concluded, "Not having shown cause for his procedural default below or actual innocence of the crimes for which he was convicted, Grounds One, Three, Four, Six and Seven of petitioner's habeas corpus petition are not cognizable in this court." App.I at 11.
Hubbard then filed a pro se motion of reconsideration of the District Court's denial of habeas relief. In response to this motion, the District Court held that although the motion for reconsideration was timely filed,
[Petitioner] does not raise any factual or legal point overlooked by this Court. Petitioner challenges this Court's statement that he did not raise actual innocence as an issue in his petition, but offers no evidence that he did raise such an issue without procedural default, and also offers no evidence that he is actually innocent for the charges he is presently incarcerated for. Mr. Hubbard's petition was denied on [the five relevant grounds] due to procedural default, so even if he had demonstrated some issue of actual innocence here, it would not have changed this Court's earlier denial of his application.
App.I at 26 (emphasis added).
We issued a certificate of appealability on the issue "whether the District Court properly rejected Appellant's attempt to overcome the procedural default of claims # 1, # 3, # 4, # 6 and # 7 by asserting his `actual innocence.'" Appellant's Br. at 2. We have jurisdiction to review the denial of the habeas writ under 28 U.S.C. §§ 1291 & 2253.
The State contends that Hubbard's allegation of actual innocence is not properly before this court because it appeared "[f]or the first time in his motion for reconsideration of the [D]istrict [C]ourt's opinion." Appellee's Br. at 15.2
Hubbard's motion for reconsideration as well as his habeas petition were filed pro se. We have previously stated that a petitioner's
failure to specifically articulate his claim as one of "actual innocence" should not preclude review of the merits of his claim. [The petitioner] clearly argued that the government could not satisfy the factual prerequisites of a ... conviction. When properly viewed through the more forgiving lens used to construe pro se habeas petitions, we conclude that the claim of "actual innocence" was properly before the District Court.
United States v. Garth, 188 F.3d 99, 108 (3d Cir.1999).
This case presents a similar situation. Among the grounds Hubbard raised in his habeas petition were "ineffective trial counsel" who "did nothing in [his] defense" and that the "whole trial was a mockery." App.II at 5. In response to the State's claim of the procedural bars, Hubbard stated that "[f]ederal review is necessary to prevent a fundamental miscarriage of justice," and that there was "a reasonable probability" that but for counsel's unprofessional errors "the results of the proceedings would have been different." Supp.App. at 125, 127.
When viewed through a "more forgiving lens" that does not require petitioners to "specifically articulate" claims of actual innocence, Garth, 188 F.3d at 108, this language in the pro se petition and traverse was sufficient to preserve Hubbard's actual innocence claim. In fact, he pled not guilty, and he filed a Bill of Alibi Particulars placing him in Atlantic City at the moment of the crime, which occurred in Camden. We therefore reject the State's argument that Hubbard's claim of actual innocence is not properly before us.
As the Supreme Court reiterated this past term, a federal court will ordinarily not entertain a procedurally...
To continue reading
Request your trial
-
Garvey v. Phelps, Civil Action No. 09–788–SLR.
...at trial,” showing that no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339–40 (3d Cir.2004).IV. DISCUSSION The amended application presents the following two grounds for relief: (1) petitioner's Fifth, Sixth, a......
-
Lewis v. Wilson
...Gladders proposed testimony is not new evidence because he could have testified at trial and, like Frank Hubbard in Hubbard v. Pinchak, 378 F.3d 333 (3d Cir.2004), Petitioner simply chose to omit this testimony at trial. See Response to Pet'r's Supplemental Brief at 16–17. The Commonwealth'......
-
Coulter v. Kelley
...that evidence is 'new' only if it was not available at the time of trial through the exercise of due diligence. See Hubbard v. Pinchak, 378 F.3d 333, 341 (3d Cir. 2004)." Kidd v. Norman, 651 F.3d at 952. 25. Because of the large volume of records presented to the Court at the Habeas Hearing......
-
Souter v. Jones
...based on adequate and independent state-law grounds. See, e.g., Williams v. Bagley, 380 F.3d 932, 973 (6th Cir.2004); Hubbard v. Pinchak, 378 F.3d 333, 341 (3d Cir.2004); Jaramillo v. Stewart, 340 F.3d 877, 883 (9th Cir.2003). Of course, these procedural limitations existed prior to AEDPA, ......