Santana v. Fenton, No. 81-2759

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SEITZ, Chief Judge, and SLOVITER and BECKER; SEITZ
Citation685 F.2d 71
PartiesRene SANTANA, Appellee, v. Peter FENTON, Superintendent, Rahway State Prison and The Attorney General of the State of New Jersey, Appellants.
Decision Date23 July 1982
Docket NumberNo. 81-2759

Page 71

685 F.2d 71
Rene SANTANA, Appellee,
v.
Peter FENTON, Superintendent, Rahway State Prison and The
Attorney General of the State of New Jersey, Appellants.
No. 81-2759.
United States Court of Appeals,
Third Circuit.
Argued May 25, 1982.
Decided July 23, 1982.

Page 72

Irwin I. Kimmelman, Atty. Gen. of N. J., Trenton, N. J., George L. Schneider, Essex County Prosecutor, Hilary L. Brunell, Asst. Essex County Prosecutor (argued), Newark, N. J., for appellants.

David A. Ruhnke, Asst. Federal Public Defender, D. N. J., Newark, N. J. (argued), for appellee.

Before SEITZ, Chief Judge, and SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

The State of New Jersey appeals from the district court's order conditionally granting Rene Santana's petition for a writ of habeas corpus. This court has jurisdiction under 28 U.S.C. § 1291 (1976).

I.

Santana was convicted in state court of a felony-murder occurring during an attempted robbery in Newark, New Jersey. Santana's conviction was modified and affirmed by the New Jersey Appellate Division, and the New Jersey Supreme Court denied certification. Santana then petitioned for a writ of habeas corpus in district court.

The first two claims in Santana's petition involve the prosecutor's effort to bolster the credibility of the State's witness, Carmen Crespo. Crespo testified that on the day before the robbery attempt, she held an informal christening ceremony at her apartment in honor of the child of a co-defendant in the case and that Santana, who was present at the ceremony, was named godfather of the child. This testimony was offered to discredit Santana's alibi defense. Although Santana himself did not take the stand, a defense witness had testified that Santana was in Corona, New York at the time of the ceremony and on the following day, when the crime was committed.

Defense counsel vigorously attacked Crespo's credibility, claiming that she had lied to protect her brother, at one time a suspect in the investigation. The prosecutor made the following statement in his summation in an attempt to bolster Crespo's credibility:

Page 73

Now what did (Crespo) tell us? She told us that there was a christening at her house. Have you heard anybody come into this courtroom and deny that a christening took place that night? Do you think she is making that up to you? She said that Jose's baby was going to be baptized ... and she said that this defendant is the baby's godfather. Did anybody deny that to you? Did anybody ever say that was a lie to you? Why is she going to make that up if it is not so?

After the prosecution's summation, defense counsel moved for a mistrial, claiming that the clear implication of this statement was that one of the two defendants should have denied Crespo's testimony. After extensive discussions with counsel, the trial court denied the motion. Immediately thereafter, defense counsel informed the court that Santana desired to take the stand to deny that he was the godfather of Jose Rodriguez's child. The court refused to reopen the case so that Santana could testify.

Santana's habeas petition alleges: 1) that the prosecutor's remark was an impermissible comment on his failure to testify, see Griffin v. California, 380 U.S. 690, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); 2) that the trial court's refusal to reopen the case deprived him of his constitutional right to testify; and 3) that numerous instances of prosecutorial misconduct denied him his right to a fair trial.

The district court granted a conditional writ of habeas corpus, holding that the prosecutorial comment "did highlight and emphasize the failure of both defendants to testify," and that this error was not harmless beyond a reasonable doubt. The court rejected Santana's right-to-testify argument, and did not consider the third ground raised. The State appeals.

II.

We first consider whether Santana exhausted his state remedies as required by 28 U.S.C. § 2254(b) (1976), with respect to his claim that the trial court's refusal to reopen the case denied him his constitutional right to testify. 1 In Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that if a habeas petition contains both unexhausted and exhausted claims, the entire petition must be dismissed for failure to comply with section 2254(b). Thus, we may not consider the merits of any of Santana's arguments unless we conclude that he has exhausted his state remedies with respect to each claim. See Slotnick v. O'Lone, 683 F.2d 60 (3d Cir. 1982).

In Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982) (per curiam), this court held that a habeas petitioner "bear(s) the burden of demonstrating that he has met the procedural requisites that entitle him to relief." Accordingly, Santana must demonstrate that he "has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect" his rights. 28 U.S.C. § 2254(b). We proceed to consider whether Santana has met his burden with respect to the right-to-testify claim. 2

A.

To demonstrate compliance with the exhaustion requirement, a habeas applicant must show that the federal claim he asserts in federal court has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). We have emphasized that "it is not enough that the petitioner presents to the state court the facts upon which a federal claim is based."

Page 74

Brown, 669 at 158. The argument raised in federal court must be the "substantial equivalent" of that presented to the state courts, Picard at 277-78, 92 S.Ct. at 513, to insure that the "method of analysis" was "readily available to the state court." Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976) (in banc).

We have examined the trial court record, as well as the briefs submitted to the New Jersey Appellate Division and the New Jersey Supreme Court. In none of these documents do we find evidence that Santana urged that the failure to reopen the case would deny him his constitutional right to testify. Rather, his argument was grounded exclusively upon state law. For example, in the brief submitted to the Appellate Division, Santana relied on State v. Gray, 101 N.J.Super. 490, 244 A.2d 703 (1968), to support his contention that the trial court "abused its discretion in its refusal to permit defendant to testify in his own behalf." Nor did Santana present a constitutionally based argument in the petition for certification, which stated only that "the denial of the motion to reopen the defense case to permit defendant to testify in light of the prosecutor's comments in summation" required reversal. Our conclusion does not rest simply upon Santana's failure to invoke a specific constitutional provision in his state court briefs. Indeed, this court has held that such a failure will not preclude a finding of exhaustion where "the substance of the ... state claim is virtually indistinguishable from the (constitutional) allegation" raised in federal court. Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980). In this case, however, the state court record is devoid of any indication that Santana presented the legal basis of the constitutional right-to-testify argument he now asserts in federal court. See Brown, 669 F.2d at 161. Indeed, Santana now concedes that the argument "was never presented to the state courts in the context of a federal constitutional claim." We agree, and thus conclude that Santana did not present to the state courts the claim he now asserts in his habeas petition. See Paulett v. Howard, 634 F.2d 117, 119 (3d Cir. 1980) (per curiam) (petitioner had not presented due process claim to state court where "his argument with respect to the prosecutor's opening remarks was presented to the Superior Court of Pennsylvania as reversible trial error, not as a constitutional violation").

B.

Our conclusion that Santana did not raise the right-to-testify claim in prior state proceedings does not end the exhaustion inquiry. If Santana demonstrates "either an absence of available State corrective procedures or the existence of circumstances rendering such process ineffective," 28 U.S.C. § 2254(b), his failure to present the right-to-testify claim to state...

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120 practice notes
  • Holloway v. Horn, CIVIL ACTION No. 00-CV-1757, CAPITAL CASE (E.D. Pa. 8/27/2001), CIVIL ACTION No. 00-CV-1757, CAPITAL CASE.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 27, 2001
    ...of proving that he has exhausted available state remedies. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982). The petitioner is not, however, required to revisit claims raised on direct appeal in state collateral proceedings, see O'......
  • Landano v. Rafferty, No. 89-5504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 3, 1990
    ...has also noted that the habeas petitioner bears the burden of proving that he has exhausted available state remedies. Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir.1982) (per cu......
  • Reynolds v. Ellingsworth, No. 86-5633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 24, 1988
    ...such a result, we cannot conclude that petitioner has demonstrated compliance with the exhaustion requirement." Santana v. Fenton, 685 F.2d 71, 75 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The question whether Reynolds had exhausted these claims ......
  • Banks v. Horn, No. 4:CV-99-0438.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 7, 1999
    ...Evans, 959 F.2d at 1231 (citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Carpenter v. Vau......
  • Request a trial to view additional results
120 cases
  • Holloway v. Horn, CIVIL ACTION No. 00-CV-1757, CAPITAL CASE (E.D. Pa. 8/27/2001), CIVIL ACTION No. 00-CV-1757, CAPITAL CASE.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 27, 2001
    ...of proving that he has exhausted available state remedies. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982). The petitioner is not, however, required to revisit claims raised on direct appeal in state collateral proceedings, see O'......
  • Landano v. Rafferty, No. 89-5504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 3, 1990
    ...has also noted that the habeas petitioner bears the burden of proving that he has exhausted available state remedies. Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir.1982) (per cu......
  • Reynolds v. Ellingsworth, No. 86-5633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 24, 1988
    ...such a result, we cannot conclude that petitioner has demonstrated compliance with the exhaustion requirement." Santana v. Fenton, 685 F.2d 71, 75 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The question whether Reynolds had exhausted these claims at th......
  • Banks v. Horn, No. 4:CV-99-0438.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • May 7, 1999
    ......" Evans, 959 F.2d at 1231 (citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Carpenter v......
  • Request a trial to view additional results

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