Landano v. Rafferty, Civ. A. No. 85-4777.
| Decision Date | 23 December 1987 |
| Docket Number | Civ. A. No. 85-4777. |
| Citation | 675 F. Supp. 204 |
| Parties | Vincent James LANDANO, Petitioner, v. John J. RAFFERTY, et al., Respondents. |
| Court | U.S. District Court — District of New Jersey |
Neil Mullin, Smith, Mullin & Kiernan, West Orange, N.J., for petitioner.
Leslie Schwartz, Deputy Atty. Gen., Trenton, N.J., for respondents.
On September 29, 1987, this court denied petitioner Vincent James Landano's application for a writ of habeas corpus. Landano v. Rafferty, 670 F.Supp. 570 (D.N.J. 1987). While expressing its "fears that a great injustice has occurred," 670 F.Supp. at 572, and "candidly admitting an exhaustive search for grounds to grant the writ," id., the court perceived that its "obligation ... to defer to the factual findings of the state court made it impossible to grant the relief sought." Id.
Petitioner has now moved for reconsideration of the September 29 opinion and order. The court has thoroughly reexamined this matter and concludes that it must deny the petitioner's motion for reconsideration, reiterating the same misgivings expressed in the court's earlier opinion.
There is no need for a recounting of the facts which led up to petitioner's conviction in May of 1977 on various charges arising out of the murder of a Newark police officer. Those facts, together with descriptions of the evidence presented at petitioner's trial and at the post-trial recantation hearing, and the arguments presented to this court on habeas review, are set out in full in the court's September 29 opinion. 670 F.Supp. at 572-80, 584-85, 586-87. The court therefore mentions only those facts and arguments which are germane to the motion for reconsideration.
In a short letter, the state court denied petitioner's discovery request on September 27, 1982.
On April 13, 1987, this court entered an order granting petitioner discovery of "all files maintained in the matter of State v. Vincent Landano by the office of the Attorney General of the State of New Jersey and the office of the Hudson County Prosecutor," as well as all documents concerning the photographic identification procedures used by investigators with Raymond Portas on April 15, 1977. That discovery produced the following new evidence: (1) a "Property and Evidence Report" indicating that two photographs of Victor Forni and several photo arrays were removed from the prosecutor's vault on April 15, 1987, the same day that Portas was asked to choose the driver of the getaway car from a photo array; (2) a manila folder in the Landano file that contained a photo display including Forni's picture but not Landano's; and (3) a statement by Michael D'Andrea, an investigator from the prosecutor's office who had not worked on the original investigation of the Landano case, that the manila folder had been shown to "a truck driver" during the Landano investigation.1 The state also disclosed a new piece of evidence: it claimed that two photos, until then inexplicably missing from the S-2 photo display which was shown to Portas on April 15, 1977, had been discovered in the S-1 display. Neither of the two photos was of Forni or Landano.
In essence petitioner now contends that this evidence, all corroborative of the credibility of Portas' recantation, was unavailable to the petitioner in the state court recantation proceeding and was thus not considered by the state court in deciding petitioner's application for a new trial. As a result, petitioner contends that this court should disregard the state court's factual findings and rely instead on its own finding that Portas' recantation is credible.
28 U.S.C. §§ 2254(d)(2), (3), and (6). Petitioner argues that the state judge's denial of his motion for discovery concerning Portas, the prosecutor's suppression of the evidence later uncovered through this court's discovery order, and the prosecutor's "harrassment and intimidation" of Portas at the recantation hearing, 670 F.2d at 758, worked together to deprive petitioner of a "full and fair" hearing conducive to the "adequate development" of "material facts."
That position would be justified if the court could conclude that the evidence presented to it—and not presented to the state court—was material, crucial, or critical, such that if it had been presented to the state court judge, it was likely to have affected his decision or the fullness and fairness of the state court hearing. Before this court may reject the findings of the state court and substitute its own, it must be satisfied that the petitioner was prejudiced in some way by the failure to have such evidence available. This court can make no such finding here.
The existence of the "Property and Evidence Report," indicating that two photographs of Forni were taken from the prosecutor's vault on April 15, 1977, might support an inference that Portas saw those photographs on that day. However, this inference is probably negated by the fact that the two photos missing from the S-2 display have been located in S-1 and neither is of Forni. Moreover, there is no other evidence that Portas saw or identified any photograph of Forni. Therefore, the court cannot say that the report itself was "material" under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),2 or that the absence of the report prevented the hearing from being "full and fair" or "adequate" for the development of the credibility of Portas' recantation. The judge at the state hearing had ample opportunity to observe the witnesses, and to hear them fully examined and cross-examined. In light of all of the other evidence before the state judge, this court simply cannot conclude that this report would have made a sufficient difference to satisfy either Brady or § 2254(d).
Similarly, the court believes that the hearsay evidence of Investgator D'Andrea was not sufficiently material to allow this court to ignore the state court finding. D'Andrea, who was not involved in the Landano investigation, stated that a manila folder in the Landano file, which contained a photo array including a photograph of Forni, was shown to "a truck driver" during the investigation. This evidence is not material for two reasons. First, there is no evidence that Portas selected a photo from this array. More importantly, however, the evidence is very weak hearsay, and therefore not sufficiently reliable to support a different outcome than the one reached by the state court.3
Finally, the fact that the two photographs missing from photo array S-2 have apparently been found in photo array S-1 does nothing more than establish the location of the missing photographs. The fact that they were missing was before the state court. Their discovery is therefore not likely to have caused the state court to alter its finding as to...
To continue reading
Request your trial
-
Landano v. Rafferty, Civ. No. 91-1881 (HLS).
...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 ......