Slotnick v. O'Lone, 81-2793
| Citation | 683 F.2d 60 |
| Decision Date | 16 June 1982 |
| Docket Number | No. 81-2793,81-2793 |
| Parties | Seymour Pincus SLOTNICK a/k/a Sino Pincus Slotnick v. Edward O'LONE, and The Attorney General of the State of New Jersey. . Submitted Under Third Circuit Rule 12(6) on |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
David A. Ruhnke, Asst. Federal Public Defender, D. N. J., Newark, N. J., for appellant.
Irwin I. Kimmelman, Atty. Gen. of N. J., Richard J. Hughes, Trenton, N. J., for appellee; Debra L. Stone, Deputy Atty. Gen., Div. of Crim. Justice, Appellate Section, Trenton, N. J., of counsel.
Before ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges.
This appeal from the denial of habeas corpus relief presents a petition which contains both claims exhausted in the state courts and claims not so exhausted. The Supreme Court's recent opinion in Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), dictates the dismissal of such a petition. Therefore we vacate the judgment of the district court and direct that the petition be dismissed.
In 1977, after a jury trial in the Superior Court of New Jersey, Seymour P. Slotnick was found guilty of a conspiracy to commit Medicaid fraud, 140 counts of Medicaid fraud and filing a false corporate franchise tax return. He was sentenced to an aggregate term of six to nine years, later reduced to five to seven years, and fined $75,000. An appeal to the Superior Court of New Jersey, Appellate Division, resulted in the affirmance of the conviction and sentence. Upon denial of his petition for certification by the New Jersey Supreme Court, Slotnick filed a petition for a writ of habeas corpus in the district court for the District of New Jersey.
Slotnick urged as grounds for habeas corpus relief that: 1 1) the prosecutor's conduct at the state trial intimidated important defense witnesses from testifying and interfered with defendant's sixth and fourteenth amendment rights to present witnesses; 2) the trial court improperly permitted the prosecutor to comment during summation on the defense failure to call the allegedly intimidated witnesses; 3) the trial court erred in preventing defense counsel from cross-examining some state witnesses; and 4) the indictment was defective on its face. The district court found against Slotnick on all claims. 2 Slotnick asserts that the district court erred in its dismissal of grounds (1) and (2) above and in not holding an evidentiary hearing.
Slotnick's federal constitutional claim that the prosecutor improperly intimidated defense witnesses from testifying on his behalf was not presented at any stage in the state court proceedings. State remedies, therefore, were not exhausted with respect to that claim. Nor does the waiver by the state of the appellant's right to exhaust state remedies compel a different result. In United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir. 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978), we made clear that the state court interest which underlies the exhaustion requirement of 28 U.S.C. § 2254(b) cannot be conceded or waived by state prosecutors.
In Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) petitioner had filed a petition for habeas corpus in federal district court alleging four grounds for relief from a state court conviction. The district court determined that petitioner had not exhausted state remedies for two grounds alleged although he had exhausted such remedies with respect to the remaining two grounds. The habeas petition, therefore, asserted a mixture of exhausted and unexhausted claims. The district court refused to consider the unexhausted claims but did reach the merits of the exhausted claims. The Supreme...
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