Opinion
Civil Action No. 99-3061 (NHP)
July 26, 2000
Mr. Louis Jordan, New Brunswick, N.J., Petitioner Pro Se.
Simon Louis Rosenbach, Assistant Prosecutor, GLENN BERMAN, PROSECUTOR, New Brunswick, N.J., Attorneys for State of New Jersey.
BACKGROUND
Petitioner, Louis Jordan (hereinafter "petitioner"), currently incarcerated at Middlesex County Adult Correction Center, filed an application and certification for habeas corpus relief on June 28, 1999. The events that precede this habeas petition are as follows.
On October 18, 1995, the petitioner and a co-defendant were arrested for marijuana and cocaine possession and the intent to sell marijuana and cocaine in violation of the provisions of N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:35-5a(1). A Middlesex County Grand Jury indicted the defendants on all four counts. On January 22, 1996, the petitioner filed a notice of motion to suppress evidence, which hinged on the issue of whether the petitioner knowingly and voluntarily gave written consent to a warrantless search of his automobile.
On August 26, 1996, the Honorable Mathias E. Rodriguez, J.S.C., issued an opinion granting the petitioner's motion to suppress. The State filed an application for leave to appeal by motion. Judge Herman D. Michaels dismissed the motion based on the State's failure to file a timely brief. The State initiated another motion to vacate the previous dismissal and reinstate the appeal. On April 23, 1997, the Appellate Division granted the State's motion. In a per curiam opinion on September, 8, 1997, the Appellate Division reversed the trial court's suppression order and remanded for further proceedings in the trial court. Petitioner requested from leave to appeal the decision of the Appellate Division, which the Supreme Court ultimately denied on December 9, 1997. Petitioner was then convicted by a jury on July 31, 1998. Judge Paley sentenced petitioner to an aggregate fifteen-year sentence.
Following petitioner's trial and conviction, petitioner filed a notice of appeal to the Superior Court of New Jersey on January 26, 1999. On appeal, petitioner argued: 1) The prosecutor's summation exceeded the bounds of propriety by inferentially commenting upon his Fifth Amendment privilege; 2) The trial court properly granted petitioner's motion to suppress the seizure of narcotics pursuant to a warrantless search, and the Appellate Division erred by subsequently reversing the trial court's ruling on interlocutory appeal; and 3) The sentence imposed was manifestly excessive. While the appeal to the Superior Court was still pending, on June 28, 1999, petitioner filed an application and certification for writ of habeas corpus claiming that the cause of detention was racial profiling. Petitioner also alleged violations of his Fourth and Fifth Amendment rights. In addition, prior to the Appellate Division's opinion, petitioner moved before the New Jersey Supreme Court for leave to file a petition for certification out of time. Although this motion has not been filed and the records of the motion cannot be found, according to a footnote in the States' response to the petition, the Supreme Court denied the motion on March 23, 1999. See Brief for Respondent at 3.
Finally, on January 3, 2000, the Appellate Division affirmed the Criminal Division's decision and denied petitioner's appeal.
DISCUSSION
In his certification to this Court, petitioner asserts the cause of his detention was predicated on racial profiling, unlawful seizure falling under the Fourth Amendment, and the prosecutor's violation of his Fifth Amendment right to remain silent.
In accordance with 28 U.S.C. § 2254, a prisoner's "application for a writ of habeas corpus pursuant to the judgment of a state court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b). The exhaustion requirement is not met where the petitioner "has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Application of this doctrine provides for dismissal of any petition, which includes both exhausted and unexhausted claims as well as new claims brought by the petitioner seeking relief from a final judgment. See Rose v. Lundy, 455 U.S. 509, 519 (1982); Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990), cert. denied, 498 U.S. 811 (1990).
The exhaustion requirement arises from interests of comity between the state and federal systems and deference for our dual judicial system.See Landano, 897 F.2d at 668; Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989). In addition, strict enforcement of the exhaustion doctrine perpetuates the notion that both federal and state courts are equally bound to preserve the integrity of the Constitution. See Rose, 455 U.S. at 519. Furthermore, a claim that has been fully exhausted in the state court system provides for a more complete factual record necessary for the resolution of the petitioner's constitutional claim, enabling the district court's review to be "expeditious." See id.; Landano, 897 F.2d at 668.
Petitioner bears the burden of proving that he has exhausted all available state remedies by showing that the claims he asserted in federal court have been "fairly presented" to the state courts and are the "substantial equivalent" of the state claims. See Landano, 897 F.2d at 668. In order for the claim to be "fairly presented" to the state courts, the state claim must be based on the same legal theory and factual premises on which the federal claim rests. See Picard v. Conner, 404 U.S. 270, 275 (1971).
In this case, the unlawful search and seizure Fourth Amendment claim was properly exhausted through the appeals of the suppression motion, and because it falls under the law of the case doctrine, which serves to avoid "repetitious litigation of the same issue during the course of a single trial," the issue need not be revisited. Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 180 (App.Div. 1993). However, both the racial profiling claim and Fifth Amendment rights claim require closer scrutiny.
The issue of racial profiling was briefly mentioned in the petitioner's suppression hearing. Mr. Kenneth G. Goodman, Esq., Assistant Deputy Public Defender, raised the issue of color for the purpose of discrediting the trooper and his testimony. See Motion to Suppress Record at 64. Goodman concluded his closing arguments stating, "I think I have already articulated what my argument is regarding the issue of consent and it not being voluntary so I'll stop there, Judge." See Motion to Suppress Record at 72. Notwithstanding the motion to suppress, the issue of racial profiling was never decided. As a result, the racial profiling claim asserted was never "fairly presented" to the state courts because the federal claim was not the "substantial equivalent" to that presented to the state courts. See Picard, 404 U.S. at 275, 278. Accordingly, the petitioner failed to exhaust his state remedies with respect to the racial profiling claim.
Petitioner's Fifth Amendment claim alleges prosecutorial misconduct on the part of the Middlesex County Prosecutor. Petitioner argues that he was denied a fair trial as a result of the prosecutor's unduly prejudicial summation. The Appellate Division decided this issue on January 3, 2000. After reviewing the trial records, the court held that "there [was] no merit to Jordan's claim of any adverse inference raised by the prosecutor's comments." New Jersey v. Jordan, No. A-2973-98T4, slip op. at 8 (N.J.Super.Ct. A.D. Jan. 3, 2000). The court also found that the trial judge effectively cured any injudicious, and isolated remarks through his instructions. See id. at 10. If the petitioner was dissatisfied with this decision, he had the opportunity to appeal to the New Jersey Supreme Court. He did not do so. Consequently, as a result of petitioner's failure to continue the requisite appeal process, the claim was not fully exhausted in the state courts.
On March 23, 1999, the New Jersey Supreme Court denied petitioner's motion for leave to file a petition for certification out of time. See Brief for Respondent at 3. It is unclear as to when the petitioner's motion was sent to the New Jersey Supreme Court and to the subject matter, as it was only set forth in the state's Answer to the petition.See id. However, this motion was filed out of sequence as a party can only seek certification from a final judgment, and in this case, the Appellate Division's decision had not been rendered at the time the motion was filed with and denied by the New Jersey Supreme Court. After the Appellate Division affirmed, petitioner did not seek review with the New Jersey Supreme Court. As a result of this procedural defect, the petitioner has failed to exhaust his state remedies.
Even assuming petitioner had exhausted all the state remedies, the petition would be denied on its merits. Pursuant to 28 U.S.C. § 2254(d), this Court must "presume as correct factual findings made by the state."Rose, 455 U.S. 519. Assuming arguendo that the racial profiling issue had been raised and properly adjudicated at the suppression hearing, the issue was rejected as a matter of fact. Being a factual issue, this Court does not have the requisite subject matter jurisdiction to review the claim and must remain consistent with the state court finding.
Petitioner's Fourth Amendment search and seizure claim is also without merit. Petitioner claims that his Fourth Amendment privilege was violated when the state trooper illegally seized him after stopping him for speeding. In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court was faced with a similar situation. In Stone, the question was whether a federal court should consider a claim that evidence obtained by an unconstitutional search or seizure was introduced at a habeas petitioner's trial, when he has previously been afforded an opportunity for full and fair litigation of his claim in the state courts. See Stone, 428 U.S. 467. The United States Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482. Although the courts are always concerned with protecting the veracity of the judicial process, that concern is limited when justifying the exclusion of highly probative and incriminating evidence. See id. at 485. Upon this reasoning, this Court finds the petitioner's Fourth Amendment claim is without merit because the petitioner was provided with a full and fair litigation on this issue. Petitioner's counsel argued this issue vigorously at trial. The Appellate Division considered the matter as well. The state courts found that the state trooper had probable cause to handle the situation in the manner practiced and that petitioner had voluntarily consented to the search of his car with the knowledge that he had the right to refuse the consent. See State of New Jersey v. Johnson, 68 N.J. 349 (1975).
Additionally, petitioner's Fifth Amendment claim that the prosecutor violated his privilege against self-incrimination is also without merit. According to petitioner, the prosecutor suggested that the petitioner was guilty for not taking the witness stand. In determining the extent of the alleged prosecutorial misconduct, the misconduct must be "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Ramseur, 106 N.J. 123, 322 (1987). Petitioner fails to demonstrate that the comments made in the prosecutor's summation were egregious, rather he only argues that he was denied a fair trial because the prosecutor's summation "exceed[ed] the bounds of propriety by inferentially commenting upon the defendant's right to remain silent." Brief of Petitioner at 6. The issue most contended pertained to the prosecutor's comment that the testimony was "uncontradicted." The petitioner argues that this comment inferentially impacted the jury. When the summation is looked at in its entirety, however, the prosecutor's comment was not so "egregious as to deny the petitioner a fair trial." State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991), certif. denied 130 N.J. 393 (1992). In addition, the judge immediately cured the situation following the prosecutor's summation and again in the jury charge. The defense counsel raised no objections to the prosecutor's comments in her summation. When there is no objection, "the remarks usually will not be deemed prejudicial." Bogen 13 N.J. at 141-42. Based on the facts that appear in the record, this Court finds that petitioner had a fair trial and that his Fifth Amendment rights were not violated during the trial.
As to petitioner's claim for ten million dollars in damages, this claim must also be dismissed on the basis that money damages are not available in habeas corpus cases. The sole function of the writ of habeas corpus is to grant relief from unlawful imprisonment. See Hill v. Johnson, 539 F.2d 439, 440 (5th Cir. 1976). Habeas is not available to review questions unrelated to the cause of detention. See Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976). Where the question does not "concern the lawfulness of the detention," the writ of habeas corpus is not available. See United States v. Martin, 116 F.3d 702, 705 (3d Cir.) (Sloviter, J., concurring), cert. denied, 118 S.Ct. 351 (1997) (quotingMcNally v. Hill, 293 U.S. 131, 139 (1934)).
CONCLUSION
For the foregoing reasons, petitioner Louis Jordan's habeas corpus petition is hereby dismissed.
A certificate of appealability shall not issue since the petitioner has not made a substantial showing of the denial of a constitutional right.
An appropriate Final Order accompanies this Letter Opinion.