Hubbard v. Pinchak

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Precedential or Non-Precedential: Precedential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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PRECEDENTIAL

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.

11