Hubbard v. Pinchak

• Court: Court of Appeals for the Third Circuit
• Decided: August 5, 2004
• Docket: 00-5150
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-5-2004

Hubbard v. Pinchak Precedential or Non-Precedential: Precedential

Docket No. 00-5150

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UNITED STATES COURT OF Mary Gibbons (Argued) APPEALS FOR THE THIRD CIRCUIT Toms River, New Jersey 08757

Attorney for Appellant

No. 00-5150 Peter C. Harvey Attorney General of New Jersey Trenton, New Jersey 08625

FRANK HUBBARD, Linda K. Danielson (Argued) Appellant Deputy Attorney General Of Counsel and on Brief v. Division of Criminal Justice Appellate Bureau STEVEN PINCHAK; THE ATTORNEY Trenton, New Jersey 08625 GENERAL OF THE STATE OF NEW JERSEY; PETER VERNIERO Attorneys for Appellees

OPINION OF THE COURT On Appeal from the United States District Court for the District of New Jersey SLOVITER, Circuit Judge. (D.C. Civil No. 97-cv-03717) District Judge: Hon. Jerome B. Simandle Petitioner Frank M. Hubbard seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He procedurally defaulted Argued May 5, 2004 his claims in the state courts. He seeks to overcome the procedural default by Before: SLOVITER and FUENTES, asserting his “actual innocence,” Bousley Circuit Judges, and POLLAK, District v. United States, 523 U.S. 614, 623 Judge* (1998); Schlup v. Delo, 513 U.S. 298, 327 (1995), a claim that the District Court (Filed: August 5, 2004) rejected. We must therefore examine the scope and contours of the claim of actual innocence as a gateway to consideration of * Hon. Louis H. Pollak, Senior the merits of petitioner’s habeas claim Judge, United States District Court for notwithstanding the procedural default. the Eastern District of Pennsylvania, sitting by designation. FACTS girlfriend, testified that she, Monroe, Hubbard, and Banks drove to O’Neal’s On June 22, 1981 in Camden, New place of residence intending to rob him, Jersey, David O’Neal 1 was killed by a that the men went into the residence while gunshot wound to the face. Thereafter, the she remained in the vehicle and did not State of New Jersey indicted Hubbard on witness anything related to their entry, but six felony counts, including murder, that she saw Hubbard and Banks run back robbery, conspiracy to commit robbery, to the vehicle, and that Hubbard instructed and firearms violations. Hubbard pled not someone to drive and wrapped the gun in guilty to all counts. Also charged as a towel. Truluck’s account was consistent defendants were John Monroe, who with Monroe’s subsequent testimony. entered a guilty plea in exchange for a thirty-year sentence, and Stanley Banks, Gary Hammon, the lone eyewitness who was a fugitive at the time of trial. who was not involved in the incident, also testified. Hammon lived “[r]ight across Monroe testified at trial to the from” O’Neal and although he did not see details of the crimes pursuant to a plea the shooting itself, he testified that there agreement with the prosecutor. He stated were three perpetrators involved, all of that he, Hubbard, and Banks met at his whom he saw conversing with each other, residence where they discussed robbing and two of whom he saw knock on O’Neal, that he assumed Hubbard had a O’Neal’s door. Hammon testified that all gun because he observed a bulge in the men were black, and that there was a Hubbard’s front, that Hubbard showed him shorter man who was “[f]ive foot a gold watch to sell to O’Neal, and that, at something” and a taller man who was “six Hubbard’s direction, Banks drove to foot something” or “six foot two.” Trial O’Neal’s. When they arrived, Hubbard Tr. at 14-15 (Apr. 22, 1982). Hammon handed O’Neal the gold watch, pulled his testified that when O’Neal opened the revolver and, when O’Neal reached for his door, one of the two men shot him. All own gun, Hubbard shot O’Neal in his face. three men fled without entering O’Neal’s Hubbard and Banks returned to their residence. He did not get a good look at vehicle and Monroe ran home. any of their faces.

Lore lie Truluck , Mon roe ’s The jury found Hubbard guilty of felony murder and robbery, and not guilty of the handgun possession charges. On 1 July 6, 1982, the state court sentenced The victim’s name appears Hubbard to life imprisonment with a 25- throughout the record as either “O’Neal” year parole ineligibility on the felony or “O’Neil.” We will conform to the murder charge, and a 20-year concurrent District Court’s spelling and use term on the robbery count. “O’Neal” herein.

2 There was no testimony linking any (1) that the indictment gun, putatively the murder weapon, to against him was based on Hubbard and no forensic evidence linking the perjurious testimony of him to the victim or the scene of the crime. the arresting detectiv e Hubbard had filed a Bill of Alibi before the grand jury; (2) Particulars before the grand jury charged that his sentence does not him in which he stated he was in Atlantic comply with New Jersey City, New Jersey on the night of the crime, sentencing criteria; (3) that which took place in Camden, New Jersey. the trial court improperly deprived him of his right to PROCEDURAL HISTORY cross-examine one of the state’s witnesses; (4) that This matter has traveled up and the police violated his Fifth down the state courts of New Jersey, and it Amendment right to counsel is unnecessary to recount the full details by ignoring his request for here. We will limit the facts to the an attorney during custodial proceedings necessary to decide this interrogation; (5) that the appeal from the District Court’s order trial court gave a prejudicial denying Hubbard’s petition for a writ of supplemental jury habeas corpus. Hubbard filed two separate instruction on the law of petitions for post-conviction relief (PCR) accomplices; (6) that the in the state courts – the first in August trial court impro perly 1988, and the second in May 1994. Both admitted certain were dismissed as untimely, and therefore photographs into evidence; were procedurally barred by New Jersey and (7) that his trial counsel state law. Although the Appellate provided ineff ective Division of the New Jersey Superior Court assistance. agreed that the claims raised in Hubbard’s second PCR petition were time barred, it App.I at 3. nevertheless stated that it “carefully reviewed each of the seven [claims] and The District Court dismissed two of [is] satisfied that there is no basis to grant the grounds raised by Hubbard for [Hubbard] relief.” App.II at 209. substantive reasons and they are not at issue in this appeal. The District Court On July 28, 1997, Hubbard filed a denied the requested writ of habeas corpus pro se petition for habeas corpus relief in on the five other claims because of the District Court, raising seven claims Hubbard’s procedural default, stating, that he had set forth in his second PCR “Petitioner has not argued that he is petition. They are: innocent of the crime for which the jury convicted him,” App.I at 10, and

3 concluded, “Not having shown cause for App.I at 26 (emphasis added). his procedural default below or actual We issued a certificate of innocence of the crimes for which he was appealability on the issue “whether the convicted, Grounds One, Three, Four, Six Distr ic t C ou rt p ro pe rly r ejecte d and Seven of petitioner’s habeas corpus Appellant’s attempt to overcome the petition are not cognizable in this court.” procedural default of claims #1, #3, #4, #6 App.I at 11. and #7 by asserting his ‘actual innocence.’” Appellant’s Br. at 2. We Hubbard then filed a pro se motion have jurisdiction to review the denial of of reconsideration of the District Court’s the habeas writ under 28 U.S.C. §§ 1291 & denial of habeas relief. In response to this 2253. motion, the District Court held that although the motion for reconsideration DISCUSSION was timely filed, I. [Petitioner] does not raise any factual or legal point The State contends that Hubbard’s overlooked by this Court. allegation of actual innocence is not Petitioner challenges this properly before this court because it Court’s statement that he appeared “[f]or the first time in his motion d id n o t r a i se a c t u al for reconsideration of the [D]istrict innocence as an issue in his [C]ourt’s opinion.” Appellee’s Br. at 15.2 petition, but offers no evidence that he did raise Hubbard’s motion for such an issue without reconsideration as well as his habeas procedural default, and also petition were filed pro se. We have offers no evidence that he is previously stated that a petitioner’s actually innocent for the charges he is presently incarcerated for. Mr. Hubbard’s petition was 2 At oral argument the State denied on [the five relevant conceded, “The whole issue of timing is grounds] due to procedural an academic issue because in the first default, so even if he had instance, there is no viable claim of demonstrated some issue of actual innocence,” and that if such a actual innocence here, it viable claim were made even in a motion would not have changed this for reconsideration, in the interest of Court’s earlier denial of his justice the District Court would have had application. to address it. Tape of Oral Argument (May 5, 2004).

4 failure to specifically F.3d at 108, this language in the pro se articulate his claim as one of petition and traverse was sufficient to “actual innocence” should preserve Hubbard’s actual innocence not preclude review of the claim. In fact, he pled not guilty, and he merits of his claim. [The filed a Bill of Alibi Particulars placing him petitioner] clearly argued in Atlantic City at the moment of the that the government could crime, which occurred in Camden. We not satisfy the factual therefore reject the State’s argument that prerequisites of a . . . Hubbard’s claim of actual innocence is not conviction. When properly properly before us. viewed through the more forgiving lens used to II. construe pro se habeas petitions, we conclude that As the Supreme Court reiterated t h e claim of “actual this past term, a federal court will innocence” was properly ordinarily not entertain a procedurally before the District Court. defaulted constitutional claim in a petition for habeas corpus “[o]ut of respect for United States v. Garth, 188 F.3d 99, 108 fin ality, comity, and the orderly (3d Cir. 1999). administration of justice.” Dretke v. Haley, 124 S. Ct. 1847, 1849 (2004). This This case presents a similar is a reflection of the rule that “federal situation. Among the grounds Hubbard courts will not disturb state court raised in his habeas petition were judgments based on adequate and “ineffective trial counsel” who “did independent state law pro cedura l nothing in [his] defense” and that the grounds.” Id. at 1852; see Wainwright v. “whole trial was a mockery.” App.II at 5. Sykes, 433 U.S. 72, 81 (1977). The In response to the State’s claim of the principal exception to this general rule procedural bars, Hubbard stated that precluding federal review of habeas claims “[f]ederal review is necessary to prevent a that have been procedurally defaulted is fundamental miscarriage of justice,” and for petitioners who can show “cause and that there was “a reasonable probability” prejudice” for the procedural default or that but for counsel’s unprofessional errors that a “miscarriage of justice” will occur “the results of the proceedings would have absent review. Cristin v. Brennan, 281 been different.” Supp. App. at 125, 127. F.3d 404, 414 (3d Cir. 2002). An allegation of “actual innocence,” if When viewed through a “more credible, is one such “miscarriage of forgiving lens” that does not require justice” that enables courts to hear the petitioners to “specifically articulate” merits of the habeas claims. claims of actual innocence, Garth, 188

5 The petitioner in Schlup v. Delo, F.3d at 412, a “fundamental miscarriage of 513 U.S. 298 (1995), the leading case on justice” will remove the bar on claims that the “actual innocence” doctrine, had made have been procedurally defaulted, and both an assertion of constitutional error at actual innocence will show such a trial and a claim of innocence. The fundamental miscarriage of justice. Supreme Court stated that because of the assertion of constitutional error, his Because the cause and prejudice conviction was not “entitled to the same exception to the procedural bar for degree of respect as one. . . that is the defaulted claims is itself based on product of an error free trial.” Id. at 316. equitable considerations, the Supreme The Court continued, Court has made clear that the actual innocence exception to the unreviewability Without any new evidence of procedurally defaulted claims should be of innocence, even the applied only in the rarest of cases. See existence of a concededly Dretke, 124 S. Ct. at 1852. As it explained meritorious constitutional in Dretke: violation is not in itself sufficient to establish a [I]t is precisely because the miscarriage of justice that various exceptions to the would allow a habeas court procedural default doctrine to reach the merits of a are judge-made rules that barred claim. However, if a courts as their stewards petitioner . . . presents must exercise restraint, evidence of innocence so adding to or expanding them strong that a court cannot only when necessary. To have confidence in the hold otherwise would be to outcome of the trial unless license district courts to the court is also satisfied riddle the cause and that the trial was free of prejudice standard with ad nonharmless constitutional hoc exceptions whenever error, the petitioner should they perceive an error to be be allowed to pass through “clear” or departure from the gateway and argue the the rules expedient. Such an merits of his underlying approach, not the rule of claims. restraint adopted here, would have the unhappy Id. Hubbard relies on this precedent as the effect of prolonging the basis for us to “pass through the gateway” pendency of federal habeas to the merits of his habeas claims. As we applications as each new explained in our decision in Cristin, 281 exception is tested in the

6 courts of appeals. rejected, Hubbard’s allegation of actual innocence as a vehicle to open the gateway Id. at 1853.

In Dretke, the Court, applying the There are several reasons the state restraint that it cautioned for the lower court’s “alternative” ruling does not courts, declined to decide the issue that obviate the need to reach the actual had divided the courts of appeals – innocence question. First, a state whether to extend the actual innocence procedural bar functions as an adequate exception to procedural default of and independent state ground which cons titut i o n a l claim s cha llengin g precludes federal review. Harris v. Reed, noncapital sentencing error. Instead, it 489 U.S. 255, 264 n.10 (1989) (“a state avoided the issue by holding that “a court need not fear reaching the merits of federal court faced with allegations of a federal claim in an alternative holding,” actual innocence, whether of the sentence as “[b]y its very definition, the adequate or of the crime charged, must first address and independent state ground doctrine all nondefaulted claims for comparable requires the federal court to honor a state relief and other grounds for cause to holding that is a sufficient basis for the excuse the procedural default.” Id. at state court’s judgment, even when the 1852. We see no ground for avoidance state court also relies on federal law.”). that was available to the District Court in Second, in Dretke the alternative habeas this case.3 It therefore met head on, and claim the Supreme Court referred to was an ineffective assistance of counsel claim that had not been procedurally barred. 3 The Appellate Division of the Should the petitioner in Dretke have New Jersey Superior Court stated that in prevailed on this habeas claim, the actual addition to Hubbard’s PCR claims being innocence question regarding the procedurally barred, they provided no procedurally defaulted claims could have basis for relief. Hubbard’s counsel urges been avoided. In the instant case, all us to consider this ruling to be an habeas claims on appeal have been “alternative ruling” that we can review procedurally defaulted. Third, Hubbard despite the procedural default ruling. acknowledges that “the issue of Appellant’s Br. at 15 n.11. At oral procedural default, vel non, lies outside argument, Hubbard’s counsel argued that the scope of the certificate of the District Court in this case failed first appealability issued here.” Appellant’s to consider alternative grounds for relief Br. at 15 n.11. For these reasons, we urged by the respondent, grounds that decline to view the state court’s comment might obviate any need to reach the regarding the merits as a basis on which actual innocence question, citing Dretke, we can avoid the actual innocence 124 S. Ct. at 1849. question.

7 to review of his procedurally defaulted trial,” and, if so, whether it is more likely claims. We conclude that we are required than not that no reasonable juror would to do the same.4 have convicted him in light of the new evidence. III. The only evidence that Hubbard A petitioner who is asserting his asserts is “new” is what he terms as “his “actual innocence of the underlying crime own sworn testimony.” Appellant’s Br. at . . . must show ‘it is more likely than not 18. Hubbard did include in his Bill of that no reasonable juror would have Alibi Particulars, which he filed as a convicted him in light of the new matter of record before indictment, a evidence’ presented in his habeas statement that places him too far from the petition.” Calderon v. Thompson, 523 city where the crime was committed to U.S. 538, 559 (1998) (quoting Schlup, 513 have participated in it. However, Hubbard U.S. at 327). In Schlup, the Supreme did not give this testimony during the trial Court stated that claims of actual even though he was available to do so. innocence are rarely successful because Counsel does not suggest that this piece of the necessary evidence is unavailable in evidence was excluded from the record the vast majority of cases. 513 U.S. at before the jury that convicted Hubbard. A 324. The Court explained that petitioner defendant’s own late-proffered testimony must support his allegations of is not “new” because it was available at constitutional error with trial. Hubbard merely chose not to present it to the jury. That choice does not open new reliable evidence – the gateway. whether it be exculpatory scientific evidence, In Glass v. Vaughn, 65 F.3d 13 (3d t r u s tw orthy eyew itness Cir. 1995), petitioner, who was convicted accounts, or critical physical of first degree murder notwithstanding his evidence – that was not alibi that he was not even at the scene presented at trial. when the killing occurred, sought to overcome his procedural default of his Id. We must therefore consider both post traumatic stress disorder by claiming whether Hubbard has presented “new actual innocence. Citing Schlup, we reliable evidence . . . not presented at rejected the actual innocence claim, concluding that petitioner had not shown that it is more likely than not that no 4 rational juror would have voted to convict We exercise plenary review over him in light of the evidence that he went to the District Court’s legal conclusion and the murder scene armed and had earlier review its findings of fact for clear error. behaved violently to the victim. Cristin, 281 F.3d at 409.

8 Hubbard’s proffered testimony fails “[W]hat part I took in this crime? Was I at to change or clarify the facts presented at the scene, around the corner? Was I in trial. At trial the strongest evidence against another city?” App.II at 9. As this Hubbard was the testimony of Monroe and information is not new, it cannot qualify as Truluck, his accomplices who were there the kind of new evidence contemplated by when O’Neal was shot, and the evidence the Supreme Court, such as “exculpatory of Hammon, albeit not specific as to scientific evidence, trustworthy eyewitness Hubbard’s identity. Mr. Wilson, accounts, or critical physical evidence.” Hubbard’s uncle, testified as a State Schlup, 513 U.S. at 324. witness that Hubbard called him three weeks after the incident to tell him he Hubbard’s counsel attempts to “was involved in a murder trial that he show Hubbard’s claim of actual innocence didn’t commit.” Trial Tr. at 83 (Apr. 28, is reliable because “[a]part from the 1982). Hubbard’s trial counsel informed testimony of Monroe and Truluck – the trial court that he would not call “Mr. rejected by the jury – there is no evidence Wilson as a witness to support of his guilt of the murder charge. Given [Hubbard’s] alibi defense.” Supp. App. at the absence of any evidence in support of 11. his guilt under a felony-murder theory, the record is barren of any inconsistency with Hubbard called no witnesses. the actual innocence claim that he now Hubbard’s defense wa s prese nted timely puts forward.” Appellant’s Br. at primarily by his trial counsel’s summation 18. We find this argument unpersuasive. to the jury, which stated, “Our whole position throughout this case is we weren’t There is no basis for Hubbard’s there, weren’t there when it happened so statement that the jury rejected the as a result we can’t be guilty.” Trial Tr. at testimony of Monroe and Truluck. 134 (Apr. 29, 1982). He referred to Although the jury acquitted Hubbard of the several other pieces of evidence from weapons charge – testified to by Monroe which the jury could have inferred that and Truluck – it convicted him on the Hubbard was not at the scene of the crime, robbery and murder charges, which were such as Hubbard’s denial of the indictment also testified to by Monroe and Truluck. and any involvement in the crime, the To the extent that the jury conviction height difference between Hubbard (who suggests anything, it suggests that it is 5’9”) and the perpetrator who Hammon believed part and disbelieved part of their testified was 6’ or 6’2”, the lack of testimony. However, it is wholly fingerprints, and the unexamined handprint inappropriate for this court to glean from on the storm door of O’Neal’s house. In a the bare fact of a partial conviction that sworn statement supporting his habeas certain witnesses’ testimony is not to be petition, Hubbard essentially alleges the believed. Further, the lack of forensic same facts, raising questions such as evidence linking Hubbard to the crime

9 does not bolster the credibility of claims] of petitioner’s habeas corpus Hubbard’s claim of innocence because it petition are not cognizable in this court.” was this same record that the jury App.I at 11.5 reviewed en route to convicting him.

The “new” evidence Hubbard puts 5 Some of the language in the forth in alleging actual innocence is District Court’s June 14, 2002 opinion nothing more than a repackaging of the regarding Hubbard’s motion for record as presented at trial. Therefore he reconsideration is troubling. The Court cannot logically meet the more likely than stated: not “that no rational juror would have voted to convict” standard. See Glass, 65 Petitioner challenges this F.3d at 17. To allow Hubbard’s own Court’s statement that he testimony that he proffers (supported by no did not raise actual new evidence) to open the gateway to innocence as an issue in his federal review of claims that have been petition, but offers no procedurally defaulted under state law evidence that he did raise would set the bar for “actual innocence” such an issue without claimants so low that virtually every such procedural default, and claimant would pass through it. This also offers no evidence that would stand in stark contrast to the caveat he is actually innocent for of the Supreme Court to exercise restraint the charges he is presently and require a “strong showing of actual incarcerated for. Mr. innocence,” and its observation that Hubbard’s petition was “[g]iven the rarity of such evidence, in denied on [some of his virtually every case, the allegation of claims] due to procedural actual innocence has been summarily default, so even if he had rejected.” Calderon, 523 U.S. at 558-59 demonstrated some issue of (internal quotation marks and citation actual innocence here, it omitted). We thus conclude that would not have changed Hubbard’s allegation of actual innocence this Court’s earlier denial is insufficient to allow review of his of his application. defaulted claims. App.I at 26. This seems to be a clear Having so decided, we agree with misapprehension of the law, although the District Court’s January 31, 2000 during oral argument counsel for the opinion that “[n]ot having shown cause for state urged this court to view it as a his procedural default below or actual “poor choice of words.” If Hubbard had innocence of the crimes for which he was demonstrated some “issue of actual convicted, [the procedurally defaulted innocence,” the District Court would

10 CONCLUSION

For the reasons set forth above, we will affirm the decision of the District Court that it was foreclosed from reviewing the procedurally defaulted claims on the ground that the allegation of actual innocence is insufficiently strong to overcome the “State’s interests in actual finality . . . .” Calderon, 523 U.S. at 557.

have been required to consider Hubbard’s habeas application differently. However, this statement does not detract from the District Court’s denial of the habeas petition on the ground that there was no “coherent argument as to his actual innocence.” App.I at 11. Further, the District Court gave no indication in its opinion denying habeas that it misapprehended the “actual innocence” law, and in fact the Court discussed the gateway correctly at some length. App.I at 8-11.