Petition for Writ of Certiorari — Hemmingway Mukora Saisi, Petitioner v. Carolyn Murray, et al.

Supreme Court briefDec 31, 2020

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE TPIIRD CIRCUIT

No. 19-2427

HEMMINGWAY MUKORA SAISI,

Appellant

CAROLYN MURRAY, Essex County Prosecutor; MICHAEL MARUCCI, Esquire,

Department of Public Defender, Essex, NJ; ELIZABETH CONNOLLY, Commissioner

Human Services, NJ; ALFARO ORTIZ, Department of Corrections, Essex County, NJ

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-16-cv-05064)

District Judge: Honorable Claire C. Cecchi

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 18, 2020

Before: JORDAN, BIBAS and PHIPPS, Circuit Judges

(Opinion filed September 22, 2020)

OPINION*

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Appellant Hemmingway Saisi, proceeding pro se, appeals from the District

Court’s order dismissing his complaint. We will affirm.

Because we write primarily for the benefit of the parties, we will recite only the

facts necessary for our discussion. In his first complaint, Saisi alleged that he was

incarcerated for eleven years and was “tortured and terrorized” while detained. The only

reference to the defendants was that they “maintained/tolerated/supervised”

unconstitutional activity. After considering the defendants’ motions to dismiss, the

district court dismissed the claims without prejudice, and Saisi was given an opportunity

to amend his pleading.

Saisi twice amended his complaint, ultimately bringing claims against only four of

the original 16 defendants. According to Saisi, he was arrested in 2008 for making

terroristic threats against his former counsel. While awaiting trial, Saisi was allegedly

transferred between Essex County Jail and Ann Klein Forensic Center, where he was

receiving pretrial evaluation and treatment. He alleged that he was beaten and forced to

take psychotropic medications because he refused to plead guilty. He stated that the

defendants conspired against him by using psychologists to diagnose him with numerous

diseases and force him to take medications. Saisi contends that he was held without a

trial for seven years and claimed that the deplorable conditions of his confinement in the

forensic center and jail were unconstitutional.

The District Court granted the defendants’ motions to dismiss. It noted that even

if Saisi’s claims about the conditions of his confinement could be substantiated, there

)

were no allegations that the four named defendants were responsible for or involved in

the alleged harms. The complaint also did not contain facts sufficient to state a claim for

conspiracy.

We have jurisdiction under 28 U.S.C. § 1291 and maintain plenary review over the

District Court’s grant of the motion to dismiss pursuant to Rule 12(b)(6). See Newark

Cab Ass’n v. City of Newark. 901 F.3d 146, 151 (3d Cir. 2018). To survive a motion to

dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The plausibility standard “require[s] a pleading to show more than a sheer possibility that

a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d

Cir. 2016).

Defendants in civil rights actions “must have personal involvement in the alleged

wrongs to be liable and cannot be held responsible for a constitutional violation which he

or she neither participated in nor approved.” Baraka v. McGreevey, 48-1 F.3d 187, 210

(3d Cir. 2007). A supervisor can be held liable, but only where “he or she participated in

violating the plaintiffs rights, directed others to violate them, or, as the person in charge,

had knowledge of and acquiesced in his subordinates’ violations.” Santiago v.

Warminster Tp.. 629 F.3d 121, 129 (3d Cir. 2010); see also Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988) (“Personal involvement can be shown through allegations

of personal direction or of actual knowledge and acquiescence.”).

Saisi asserted that the defendants—including the Essex County Prosecutor, the

warden of the Essex County Jail, a public defender, and the New Jersey Commissioner of

Human Services—were liable for the unconstitutional conditions of confinement under a

theory of respondeat superior or supervisory liability. Though the conditions of his

confinement may have been unconstitutional as pleaded, Saisi did not allege any facts

showing the defendants’ actual knowledge of the alleged violations or participation

therein. See Santiago. 629 F.3d at 129; Rode. 845 F.2d at 1207. Saisi asserted that some

defendants were “in charge of agencies that allowed this to happen,” and that liability

stemmed merely from defendants’ “belief’ that their conduct would be “tolerated.”

However, a director cannot be held liable “simply because of his position as the head of

the [agency].” Bvancho v. Fisher. 423 F.3d 347, 354 (3d Cir. 2005). Even accepting the

factual allegations as true, there is not enough, without more, to support a claim.1

The conspiracy claim fails for the same reason. Conspiracy claims require the

plaintiff to, among other things, “demonstrate that the state actors named as defendants in

the complaint somehow reached an understanding to deny the plaintiff his rights.”

Jutrowski v. Township of Riverdale. 904 F.3d 280, 295 (3d Cir. 2018) (internal citation

omitted). As the District Court explained, Saisi’s conclusory allegations did not contain

any specific facts showing that there was an agreement between the parties.2

1 To the extent that Saisi alleged that the public defender whb represented him at trial

violated his constitutional rights, those claims are not cognizable under § 1983 because

public defenders are not state actors. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981).

2 Saisi was instructed by the Clerk to include arguments in his opening brief about any

Accordingly, we will affirm the judgment of the District Court. Saisi’s motion to

expand the record is denied.

defendants which were previously dismissed and not named in the final amended

complaint if he wished to have them reviewed. As he did not include any such arguments

in his brief, we have reviewed only the District Court Order dismissing the operative

complaint.

Case 2:16-cv-05064-CCC-JBC Document 63 Filed 05/30/19 Page 1 of 1 PagelD: 1018

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HEMMINGWAY MUKORA SAISI,

Civil Action No. 16-5064 (CCC) (JBC)

Plaintiff,

ORDER

CAROLYN MURRAY, et al.,

Defendants

CECCHI, District Judge.

This matter comes before the Court on the complaint filed by Plaintiff Hemmingway

Mukora Saisi, asserting claims under 42 U.S.C. § 1983 for alleged violations of Plaintiffs

constitutional rights by Defendants. Presently before the Court are two motions to dismiss filed

by all remaining Defendants, ECF Nos. 57, and 58. Plaintiff opposes the motions. For the reasons

set forth in the Opinion filed on this date, and for good cause shown,

IT IS on this 3 ° day of

.,2019,

ORDERED that the motions to dismiss, ECF Nos. 57 and 58, are hereby GRANTED; and

it is further

ORDERED that all claims are hereby DISMISSED WITH PREJUDICE; and it is

further

ORDERED that the Clerk shall close the Court’s file in this matter.

Claire C. Cecchi, U.S.D.J.

Case 2:16-cv-05064-CCC-JBC Document 48 Filed 05/29/18 Page 1 of 4 PagelD: 798

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HEMMINGWAY MUKORA SAISI,

Civil Action No. 16-5064 (CCC)

Plaintiff;

MEMORANDUM OPINION

AND ORDER

CAROLYN MURRAY, et al.

Defendants.

CECCHI, District Judge.

This matter comes before the Court on the Complaint filed by Plaintiff Hemmingway

Mukora Saisi (“Plaintiff’), asserting claims under 42 U.S.C. § 1983 for alleged violations of

Plaintiff s constitutional rights by Defendants. Upon motions by Defendants, the Court dismissed

all claims except those against Defendant Loretta E. Lynch. (ECF No. 28). The Court allowed

Plaintiff to amend the Complaint, and directed Plaintiff to provide proof of service upon Lynch.

(M). Plaintiff filed an Amended Complaint, (ECF No. 35), but did not provide proof of service

upon Lynch. Presently before the Court are motions to dismiss by various Defendants, seeking

dismissal of claims in the Amended Complaint. (ECF Nos. 37,38,43,44). For the reasons stated

below, the motions to dismiss are granted.

Defendants assert that the Amended Complaint fails to state a claim upon which relief may

be granted, and the Court agrees. As the Court found in its previous opinion, Plaintiffs claims

appear to arise out of state criminal prosecutions that occurred from “March 29[], 2004 thru Oct.

24,2007, May 9[], 2008 thru Dec. 31[J, 2014 and still continuing.” (ECF No. 27 at 2). However,

Plaintiff provided no factual allegations to support his claims, which necessitated dismissal. (Id.

at 6). The Court also noted that in a previous complaint Plaintiff filed not before this Court, he

asserted similar claims, but those claims were found to be untimely and barred by Heck v.

Case 2:16-cv-05064-CCC-JBC Document 48 Filed 05/29/18 Page 2 of 4 PagelD: 799

Humphrey, 512 U.S. 477 (1994). (ECF No. 27 at 3 (citing Saisi v. Jersey City Police Dep’t, No.

15-2021 (SRC), ECF No. 3 at 4-6)).

In the Amended Complaint, Plaintiff explicitly states that his claims arise out of a criminal

prosecution that began in March of 2004 and ended in October of 2007 with a conviction, and

another criminal prosecution that began in May of2008 and ended in October of 2014, also with

a conviction. He alleges that he was falsely prosecuted, convicted, and imprisoned. To the extent

Plaintiff is asserting malicious prosecution claims, his claims fail. Malicious prosecution claims

require a showing that the prosecution ended in Plaintiff’s favor, see Kossler v. Crisanti, 564 F.3d

181,186 (3d Cir. 2009), which Plaintiff cannot show, as he was convicted in both aforementioned

proceedings. To the extent Plaintiff asserts that he was falsely convicted and imprisoned in both

cases, the Supreme Court has held that:

[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court’s issuance of a writ of habeas corpus, 28

U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable under § 1983.

Heck, 512 U.S. at 486-87. Again, Plaintiff cannot make the requisite showing because he was

convicted, and he does not assert that either conviction has been invalidated or expunged.

Plaintiff also asserts a claim for ineffective assistance of counsel against his former

criminal defense attorney, Defendant Anthony R. Gualano. In his motion to dismiss, Gualano

asserts, among other defenses, that the Amended Complaint fails to state a claim against him

because it does not explain how Gualano was ineffective.1 The Court agrees, as the Amended

The Court notes that Gualano does not raise the defense that he cannot be sued under § 1983 as

a private attorney. SeeJacksonv. City ofErie Police Dep% 570F. App’x 112,113 (3d Cir. 2014)

(“[PJrivate defense attorney cannot be construed as a person acting under the ‘color of state law’

Case 2:16-cv-05064-CCC-JBC Document 48 Filed 05/29/18 Page 3 of 4 PagelD: 800

Complaint contains no factual allegations regarding Gualano’s ineffective assistance. See BellAtl.

Corp, v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiffs obligation to provide the ‘grounds’

of his ‘entitlejment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.”) (citations omitted); Badia v. Warden, HCCC,

No. 10-5662, 2011 WL 221709, at *3 (D.N.J. Jan. 19, 2011) (finding that a § 1983 complaint

should specify “the who, what, when, where, and how: the first paragraph of any newspaper story”)

(citations omitted). Plaintiff attempts to cure this defect in his reply, by including a list of factual

allegations detailing Gualano’s errors, (see ECF No. 45 at 2-5), but this Court is not obligated to

“to accept assertions in a brief without support in the pleadings. After all, a brief is not a pleading.”

Chavarriaga v. NJ. Dep 't of Corr„ 806 F.3d 210,232 (3d Cir. 2015).

As such, the Court finds that the Amended Complaint does not state a claim upon which

relief may be granted. Accordingly, Defendants’ motions are granted, and all claims against them

are dismissed. Furthermore, because Plaintiff did not provide proof of service upon Lynch, the

claims against her are also dismissed. See Fed. R. Civ. P. 4(m) (stating that if a defendant is not

served within time, the Court may on its own, after notice to the plaintiff, dismiss the action against

that defendant without prejudice). Having dismissed all claims, the Amended Complaint is

dismissed.

In the interest ofjustice, the dismissal is without prejudice, and Plaintiff shall have 30 days

to amend the pleading to cure the defects identified herein. The Court cautions that this is

Plaintiff’s last chance to amend, and failure to amend or state a valid claim will result in a dismissal

within the meaning of § 1983.”) (citing Polk Cty. v. Dodson, 454 U.S. 312,317-25 (1981)), Bullock

v. Shane Toyota Inc., 415 F. App’x 386, 389 (3d Cir. 2011) (holding that a private attorney was

not liable under § 1983 because the plaintiff had not set forth any facts to demonstrate that her

attorney was a state actor or acted under the color of state law). Nonetheless, in light of Plaintiff s

pro se status, the Court cautions Plaintiff to consider this argument in the event he files an amended

complaint.

Case 2:16-cv-05064-CCC-JBC Document 48 Filed 05/29/18 Page 4 of 4 PagelD: 801

with prejudice. See Velazquez v. Zickerfoose, No. 11-2459,2014 WL 6611058, at * 7 (D.N.J. Nov.

21,2014) (dismissing with prejudice after having afforded plaintiff three opportunities to perfect

pleading); Donnelly v. Option One Mortg. Corp., No. 11-7019,2014 WL 1266209, at *18 (D.N.J.

Mar. 26, 2014) (same); Thompson v. Keystone Human Servs. Corp., No. 09-2558, 2012 WL

398619, at *6 (M.D. Pa, Feb. 7, 2012) (denying leave to amend after three chances); see also

Grayson v. Mayview State Hosp., 293 F.3d 103, 112-13 (3d Cir. 2002) (holding that futility of

amendment is a proper reason to deny leave to amend).

Accordingly IT IS on this

day of

,2018,

ORDERED that die motions to dismiss, ECF Nos. 37, 38, 43, and 44, are hereby

GRANTED; it is further

ORDERED that all claims in the Amended Complaint are hereby DISMISSED

WITHOUT PREJUDICE, and the Amended Complaint is hereby DISMISSED; it is further

ORDERED that Defendant Loretta E. Lynch is hereby DISMISSED from the case; it is

further

ORDERED that Plaintiff shall, within 30 days of this Memorandum Opinion and Order,

amend his pleading to cure the defects identified herein; failure to amend or otherwise cure the

defects will result in a dismissal with prejudice; it is further

ORDERED

that,

for

docket

management

purposes,

the

Clerk

shall

ADMINISTRATIVELY TERMINATE this case; the Clerk will be directed to reopen the case

once an amended pleading is filed; and it is further

ORDERED that the Cleric shall serve a copy of this Memorandum Opinion and Order

upon Plaintiff by regular mail and shall CLOSE the file.

Claire C. Cecchi, U.S.D.J.

Embassy of the Republic of Kenya Washington, D.C.

KEW/ADM/G/122/VOL.l

/■'

November 18, 2011

Mr. Alfaro Ortiz

Director

Department of Corrections

Essex Correctional Facility

356 Doremus Avenue

Newark, NJ 07105

RE: MR. HEMMINGWAY MUKORA SAIST

Mr, Hemmingway Saisi, a Kenyan national has reached out to the Embassy

and informed about his protracted incarceration at the Essex Correctional

Facility and the Ann Klein Forensic Centre. He has been in custody since 2004

during which period he alleges that he has been unfairly treated while in

custody and claims to have been tortured by officials in the correctional facility.

The Embassy kindly requests that the allegations of torture by Mr. Saisi be

investigated and the judicial process be expedited so as to bring this pending

case to its logical conclusion. The Embassy would also greatly appreciate to be

provided with a status of the case against Mr. Saisi.

D.M. Muhambe

FOR: AMBASSADOR

Cc:

Ms. Jacqueline Saisi

Newark, New Jersey

2249 R Street, NW • Washington, D.C. 20008 U.S.A.

Telephone (202) 387-6101 ° Fax (202) 462-3829 • Email: Info@kenyaembassy.com ° www.kenyaembassy.com

EMBASSY OF THE REPUBLIC OF KENYA

WASHINGTON, D.C.

KEW/ADM/G/ 122/VOL.2

July 13, 2012

The Hon. Michael A. Petrolle

Presiding Judge

Essex County Courts Building (602)

50 W Market Street

Newark New Jersey 07102

RE: MR. HEMMINGWAY MUKORA SATST

SSHsStSS

national who is facing trial before the Hon. Judge and has reached out to the

Embassy expressing concern about his protracted incarceration at the Essex

County Jail and the Ann Klein Forensic Centre, as well as the inordinate delay

that hC Udmgnh‘S tr?a ' He haS been ‘n custody since 2004 and is apprehensive

that his case has taken too long to determine.

D.M. Muhambe

FOR: CHARGE D’ AFFAIRES a.i

Cc:

Mr. Hemmingway Saisi

Essex County Jail 383875C

Doremus Avenue

Newark, NJ 07105

2249 R Street, NW • Washington, D.C. 20008 U.S.A.

Telephone (202) 387-6101 • Fax (202) 462-3829 • Email: Information@kenyaembassy.com • www.kenyaembassy.com

Embassy of the Republic of Kenya Washington, D.C.

KEW/ABM/G/ 122/VOL. 1

November 18, 2011

Judge Peter Vasquez

Presiding Judge

Essex County Superior Court1

Veterans Court House

50 W Market Street

Newark New Jersey 07102

■

RE: MR. HBMMINGWAY MUKORA SAISE

Mr. Hemmiiigway Saisi, a Kenyan national has reached out to the Embassy

and informed about his protracted incarceration at the Essex Correctional

Facility and the Ann Klein Forensic Centre. He has been in custody since 2004

during which period he alleges that he has been unfairly treated while in

custody and claims to have been tortured by officials in the correctional facility.

The Embassy kindly requests that the allegations of torture by Mr. Saisi be

investigated and the judicial process be expedited so as to bring this pending

case to its logical conclusion. The Embassy would also greatly appreciate to be

provided with a status of the case against Mr. Saisi.

D.M. Mutaamlbe

FOR: AMBASSADOR

Cc:

Ms. Jacqueline Saisi

Newark, New Jersey

2249 R Street, NW • Washington, D.C. 20008 U.S.A.

Telephone (202) 387-6101 0 Fax (202) 462-3829 c Email: lnfo@kenyaembassy.com ° www.kenyaembassy.com

,y>

Jacqueline Cole

147 Woodlawn Avenue

Jersey City, NJ 07305

201-S36-3660

Representative for claimant Hemmingway Saisi 383875C

(All correspondences to be sent to the aforementioned address)

Mr. Glenn Ferguson

CEO

Ann Klein Forensic Center

Sullivan Way, P.O. Box 7717

West Trenton, NJ 08628

Dear Mr. Ferguson,

RE: Notice of claim pursuant to N.J.S.A 59:8-4

I, Jacqueline Cole, sister to and representing the claimant Hemmingway Saisi, do hereby certify as

follows:

In numerous occasions, Hemmingway Saisi whilst in.your, facility was subjected to treatment that

bordered on willful negligence, civil and human abuse by staff employed in your facility.

He was given potent psychotropic medication without appropriate evaluation or follow-up, placing

him at risk for life-threatening consequences. The facility being a psychiatric unit does not negate

your responsibility of diagnostic investigation with the patient, family and others to ascertain the

cause for their current residence. As a result of the medication mismanagement and treatment

failures, he lives with agonizing side effects: not limited to/ but including twitching, facial and body

swelling, boils and tongue swelling, racing thoughts, disorientation, depression, and chronic sleep

loss. Effects of chemical and medical abuse in the care of a state run institution that are now part

and parcel of his remaining adult life.

The administration of psychotropic medications that are too potent and reserved for hopeless cases,

a. Proxilin, or its RX equivalent Fluphenazine

b. Haldol or its RX equivalent Haloperidol

Both have activities at all levels of the central nervous system as well as on multiple organ

systems. Their resulting severe side effects are not limited to/ but including irreversible life

altering and threatening outcomes. Hemmingway has been found competent to stand trial in

2004, whilst facing 7 counts which included Murder, found competent in February 2012,'works

in.your canteen and has exhibited the same responses on his innocence since the very first time

he came to your facility. And yet your team without patient medical review, administer these

drugs via injection/liquid form by force on Friday proceeding a long holiday weekend.

Threated by patients/inmates in your facility yet he has/had no relations to them or to receive

threats to his person. He was then restricted to his cells 23 hours a day, with inadequate health care

and nourishment which led to respiratory infections, and skin boils and deprived of rights given to

other patients, and yet he was not the aggressor/agitator.

Jacqueline Cole

147 Woodlawn Avenue

Jersey City, NJ 07305

201-935-3660

Representative for claimant Hemmingway Saisi 383875C

(A!! correspondences to be sent to the aforementioned address)

While in restrictive custody he was subjected to abuse from staff, some using very racial slurs

others calling him mental, taunting him about dying in the unit and his body being buried in some

African jungle. The conditions not limited to jail cell without a mattress, working toilet, drinking

water, and the slamming of his cell door in the middle of the night with calls for mental health. He is

reprimand for asking for his basic rights civil, human and health- instead he is administered more

psychotic medication.

On his reporting any of the above to the medical team/staff, excessive force and forceful psychotic

medication is prescribed and administered. The staff have instigated/use of provocative innuendoes

to solicit a negative reaction which in turn lead to assault /threat to his person or threat to instigate

a chargeable offense on Hemmingway while the others covered it up.

Despite Hemmingway never being charged with a crime, your healthcare institution didn't/has hot

done anything or follow through / not limited to speaking to the patient himself to determine why

he was/is being improperly detained at your facility courtesy of the courts. Instead you have had a

gainful arrangement of moving him conveniently between your facility and Essex Correctional Jail

thus further enabling the abuse and denial of his judicial, human and civil rights.

Pursuant to the New Jersey Tort Claims Act N.J.S.A 59:8-4,1 am filing a notice of claim of an

undisclosed amount.

I hereby certify that the foregoing statements made by me are true, i am aware that if any of the

following statements made by me are willfully false, then I am subject to punishment.

Date: November 18th 2013

Respectfully Submitted,

Jacqueline Cole

On behalf of Hemmingway Saisi 383875C

cc.

Amina Mohammed - Ministry of Foreign Affairs

The Republic of Kenya, Nairobi, Kenya

Governor State of New Jersey

Chris Christie

Trenton, New Jersey

i $

S'?’

SUPERIOR COURT OF NEW JERSEY

HUDSON COUNTY

LAW DIVISION

INDICTMENT NO. 04-06-1077-1

STATE OF NEW JERSEY,

CRIMINAL ACTION

Plaintiff,

Petition for PostConviction Relief

vs.

HEMMINGWAY SAISI

Defendant

BRIEF IN SUPPORT OF DEFENDANT'S PETITION

FOR POST-CONVICTION RELIEF

YVONNE SEGARS SMITH

PUBLIC DEFENDER

Attorney for Defendant

31 Clinton Street, 9th Floor

Newark, New Jersey 07101

John P. Monaghan, Esq.

50 Main Street

Hackensack, New Jersey 07601

Designated Counsel

and on the Brief

DEFENDANT PRESENTLY CONFINED

TABLE OP CONTENTS

PAGE NO.

PROCEDURAL HISTORY

STATEMENT OF FACTS

LEGAL ARGUMENT

POINT I

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL, (U.S. CONST.,

(Amend. VI, XIV: N.J. CONST., (1947), Art. I,

par. 10) WHEN WHEN TRIAL COUNSEL STIPULATED

STATE'S EVIDENCE.

POINT II

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL

FAILED TO FILE A PROBABLE CAUSE MOTION TO CHALLENGE

THE STATE'S CLAIM THAT POLICE HAD PROBABLE CAUSE

TO ARREST DEFENDANT ............................ ......... .13

POINT III

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL

WHEN COUNSEL FAILED TO ARGUE SELF-DEFENSE DURING

ITS SUMMATION..........................................................................

POINT IV

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN

CUMULATIVE EFFECT OF ERRORS DENIED DEFENDANTS RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL....................................

POINT V

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF

IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR

RULE 3:22-5.........................................................................

CONCLUSION

( v.

,,r

INDEX TO APPENDIX

PAGE NO.

HUDSON COUNTY INDICTMENT

Da 1-2

VERDICT SHEET

Da 3

ORDER DENYING NEW TRIAL

.Da 4

JUDGMENT OF CONVICTION

Da 5-6

DEFENDANT'S NOTICE OF CROSS-APPEAL

Da 8

PETITION FOR CERTIFICATION

Da 9

ORDER DENYING PETITION FOR CERTIFICATION

. Da 10

ORDER ASSIGNING COUNSEL FOR POST CONVICTION RELIEF

Da 11

DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF

Da 12-20

J-2 STIPULATED EVIDENCE

Da 21

TABLE OF CASES

PAGE

Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987)

.10

Brineqar v. United States, 338 U.S. 160, 175, 69 S. Ct.

1302, 93 L. Ed. 1879 (1949)

.......................................................

Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830 (1985)

.... 7

Jones v. Barnes, 463 U.S. 745, 758, 103 S.Ct. 3308, (1983) , 7

Kirtunelman v. Morrison, 477 U.S. 365, 376, 106 S.Ct. 2574,

2583 (1986)

• 7,9

Marshall v. Barlow's Inc., 436 U.S. 307, 313, 98 S. Ct.

1816, 56 L. Ed. 2d 305 (1978) ......................................................

Martin v. Rose

744 F. 2d 1245, 1249 (6th Cir. 1984).

McMann v. Richardson,' 397 U.S. 759, 771 n.14, 90 S.Ct.

1441,1449 (1970) ..................................................................................

. 6

People v. Lee, .541 N.E. 2d 747, 764 (Ill.App. 5 Dist. 1989). 8

Quartararo v, Fogg, 679 F. Supp. 212, 247 (E.D.N.Y.),

aff'd, 849 F.2d 1467 (2d Cir. 1988).......................................

Randall v. State, 609 A.2d 949 (R.I. 1992)

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.

2041, 2043, 36 L.Ed. 2d 854, 858 (1973)). ......

Schneider v. Simonini, 163 N.J. 336, 361 (2000)

Smith v. United States, 608 A.2d 129 (D.C. App. 1992)

.10

State v.

.25

Allen, 308 NJ Super 421 (App.

Div. 1998)

State v. Arthur, 184 N.J. 307,318 (2005)

State v. Blanks, 313 N.J.Super. 55 (App. Div. 1998).

State v. Cerbo

78 N.J. 595, 605 (1979)

State v. Cooke, 163 N.J. 657, 664

.20

(2000)

State v. Davis, 116 N.J. 341, 351 (1989).

State v, DeLuca, 168 N.J. 626, 631 (2001)

iii

State v. Demeter, 124 N.J. 374, 381 (1991)

State v. Deutsch, 229 N.J. Super. 374, 385-87 (App.Div 1988)26

State v. Ercolino, 79 N.J. 25,41 (1979)

State v. Flores, 228 N.J. Super. 586, 589-590

App. Div. 1988), certif. denied, 115 N.J. 78 (1989) . .

State v. Fritz, 105 N.J. 42, (1987)

State v, Gartland, 149 N.J. 456, 467 (1997)

.20

State v. Jarbath, 114 N.J. 394, 402 (1989)

State v. Johns 111 N.J. Super. 574, 576 (App. Div. 1970) .

.30

State v, Johnson, 287 N.J. Super. 247, 263 (App. Div.)

certif. denied, 144 N.J. 587 (1996)

State v. Kelly, 97 N.J. 178, 197-98 (1984)

. 19

State v. Marshall, 148 N.J. 89 (1997)

. 32

State v. Martelli, 201 N.J. Super^ 378, 385-86 (App. Div. 1985)31

State v. Martinez, 229 N.J. Super. 593, 560

(1989)), certif. denied, 144 N.J. 589 (1996)

. 21

State v. Maryland, 167 N.J. 471, 482 (2001)

.15

State v. Mitchell, 126 N.J. 565 (1992)

. .

State v Moore, 158 N.J. 292(1999)

State v. Novembrino, 105 N.J. 95, 106 (1987)

. 17

State v, Orecchio, 16 N.J 125 (1954)

. 24

State v. Piniero, 181 N.J.13 (2004)

State

Preciose,

129

N.J.

451,

462

(1992).

State v. Rodriquez, 392 N.J.Super. 101 (App Div. 2007) . . .

.21

State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). . 10

State v. Savage, 120 N.J. 594, 617, 621 (1990)

.11

State v. Sims,

75 N.J. at 354

.16

State v. Smith, 155 N.J. 83 (1998)

.17

State v. Roth, 95 N.J. 334, 369 (1984)

State v. Russo, 333 N.J.Super.119,

(App. Div. 2000)

State v. Savage, 120 N.J. at 594

.24

State v. Sloan, 226 N.J. Super. 605, 612 (App. Div.),

certif. denied, 113 N.J. 647 (1988)......................................

State v. Williams, 168 N.J. 323,

(2001)

State v. Wilson, 178 N.J. 7, 13 (2003)

. 15

Strickland v. Washington, 466 U.S. 668, 685,

104 S.Ct. 2052, 2063 (1984), ................................

Terry v. Ohio, supra, 392 U.S. at 21, 88 S. Ct. 1868

United States v. Baynes, 687 F. 2d. 659 (3rd. Cir. 1982) .... 13

United States v. Cronic, 466 U.S. 648, 654 (1984)

United States v. Gray, 878 F. 2d. 702,711(3rd. Cir.1989).

Willis v. Newsome, 771 F.2d 1445, 1447 (11th Cir. 1985),

cert, denied, 475 U.S. 1050, 106 S.Ct. 1273 (1986) . . .

. 13

. 11

STATUTES

N.J.S.A.

2C:11-3(a)1

2C:12-1(b)1

2C:39-4(d)

2C:11-4(b)1

2C:3-4b(3)

COURT RULES

Rule 3:22-4

Rule 3:22-5

CONSTITUTIONAL PROVISIONS

U.S. CONST.Amend. VI, XIV

N.J. CONST.,

.28

. 6

(1947), Art. I, par. 10 ..

- v-

PROCEDURAL HISTORY

June

30,2004,

Indictment No.

Saisi with :

the

1077-06-04,

Hudson

which

County

Grand

Jury

charged defendant,

returned

Hemmingway

(count 1) murder, a first degree crime, contrary to

the provisions of N.J.S.A. 2C:ll-3(a)l;

(count 2) purposely causing

serious bodily injury contrary to N.J.S.A. 2C:12-1 (b) 1;

purposely causing

serious bodily

injury with

contrary to N.J.S.A. 2C:12-l(b)l;

a deadly weapon

(count 4) attempting to cause

serious bodily injury contrary to N.J.S.A. 2C:12-l(b)l;

purposely causing

(count 3)

serious bodily

injury with

(count 5)

deadly weapon

contrary to N.J.S.A. 2C:12-l(b)l; and possession of a weapon for an

unlawful purpose contrary to N.J.S.A. 2C:39-4(D).

(Da-1).

The trial was conducted before the Honorable Peter J. Vasquez,

J.S.C. and a jury on March 15,17,22,23,29 and 30,2005.

On March 30,2005, the jury found defendant guilty of second

degree manslaughter contrary to N.J.S.A. 2C:11-4(B)1; Defendant was

found not guilty of the remaining charges.

(Da-3).Defendant moved

for Judgment Non-Obstante Verdicto which was denied.

(Da-4).

On July 19,2005, the trial court granted defendant's motion to

sentence

defendant

one

degree

lower

than

second degree

crime.(8T9-20; DA-5)and imposed a term of four years incarceration

subject to the 85% No Early Release Act (NERA) period of parole

eligibility. (Da5-Da8). On July 26,2005, Judgment of Conviction was

entered.

(Da-5).

Defendant filed a Notice of Appeal on August 19,2005(Da-8).

The

appellate

division

affirmed

the

trial

court's

rulings.

Thereafter, defendant filed a Petition for Certiori to the Supreme

Court, which was denied. (Da-9 to Da-10)

On January 13, 2009, the Hon. Sheila A. Venable, P.J.,Crim.,

entered an Order assigning counsel for Post-Conviction Relief.(Da11 to Da-20) .

**Transcript Reference:

IT (Trial, March 15,2005)

2T (Trial, March 17,2005)

3T (Trial, March 22,2005)

4T (Trial, March 23,2005)

5T (Trial, March 29,2005)

6T (Trial, March 30,2005)

7T (Motion, May 17,2005 )

STATEMENT OF FACTS

Corey

Denis

the

cousin

Jeff

victim,

the

Sheppard.(2T41:24). Defendant, Hemmingway Saisi is married to his

cousin,

Shamika Denis

(Saisi).

(2T42:8).

On March 29,2004,

Mr.

Denis was with Jeffrey Sheppard on the day he was killed. (2T43:9).

Jeff Sheppard called defendant's wife, Shamika.

(2T43:25). Sheppard

requested that Denis take him to Shamika's house.(2T44:26).

James Clark at the time of defendant, Saisi's trial, was in

jail for possession of C.D.S. with intent to distribute. (3T3:21).

On the date of the killing, he was with Jeff Sheppard who had just

been

let

out

jail.

(3T5:l-5).

Jeff

Sheppard

was

fussing

(arguing) with Hemmingway Saisi about his wife, Shamika. (3T9:18-jr---------- r»

25).

Defendant followed the victim across the street saying "you

don't have the right to come to my house" 1^(3T17 : 6-10) . In addition

to the conviction for possession of C.D.S.,

James Clark had two

other convictions for' possession of a weapon and for possession of

hollow point bullets.

(3T24). Clark indicated that Jeff Sheppard

knew Sheppard was not welcome at Hemmingway Saisi's residence;

Saisi did not want him talking to Saisi's family.

this,

Sheppard wrote to Saisi's wife,

Shamika,

(3T30). Despite

while he was in

jail.(3T30:16).

Sheppard arrived at the residence of defendant. The men had

walked up the stairs to the Saisi apartment and Sheppard walked

right

Saisi,

straight

acknowledging Saisi.

(3T44

into

the

living

to 3T45:5).

room

without

even

Sheppard was trying

provoke Saisi.

(3T48:6-9).

Corey

and

Denis

defendant. (2T73:1-3) .

Jeff

Sheppard

entered

Sheppard was a big man,

the

residence

approximately six

foot four inches, three-hundred twenty pounds with a muscular, not

fat frame.

(3T32-3T33).

Sheppard and Saisi started fighting,

each other and started wrestling.

(2T47:12).They grabbed

(2T50:l-3). Denis testified that

Saisi had a knife, did not reach for it, but it dropped out of his

(2T50) .

back-side.

Sheppard's body.

the

time

Saisi's

body

was

under

Jeff

(2T52:9-10). Saisi was waiving the knife and cut

both Corev Denis and Jeff Sheppard. (2T53). Jeff Sheppard then fell

to the ground (2T54:1) .

Sheppard and James

Saisi was chasing all of the men(Denis,

Clark).

(2T65:l-6).

then stabbed

stabbed the victim in

Sheppard in the chest.

Defendant

BM0

the chest a second time.

Dr.

(2T60) .

Shaikh testified that he performed an autopsy on Jeff

Sheppard. (4T52:25). Sheppard sustained three stab wounds, two in

the chest. The third stab wound was in the thigh which cut the

femoral artery and was a fatal wound.-(4T55;4T86:13 to 4T87:10).

At the time of the incident, Sheppard had just been released

from prison.

(2T7 0:1-3) .

see

Shamika

stabbing,

Denis

Just after his release, Sheppard wanted

Saisi.(2T71:16-20).

Just

one

week before

and Sheppard visited the Saisi

the

residence when

Sheppard walked right by defendant not even acknowledging him.

(2T7 6:19-23) .

• (I

James Clark told the police that Sheppard started the fight by

jumping Saisi and hitting him first.

Saisi

down three

steps,

falling

(3T63:22-25).Sheppard pulled

the

ground.

(3T64:21-25).

six foot

four,

three

Sheppard threw the

first

Saisi's body was under Sheppard who was

hundred, twenty pounds.

punch.

(3T65:20-22).

(3T65:25) .

Ingrid Gaynor also testified. She was engaged to the victim.

(2T27:5). She acknowledged that she had to identify the victim to

the police on a different date because Jeff Sheppard had attempted

to strangle her.

(2T29:18-21) .

LEGAL ARGUMENT

The Petitioner asserts that his attorneys failed to provide

him with effective assistance of counsel.

He further asserts that

because he was prejudiced by these failures, the Court should grant .

his motion, for post-conviction relief.

POINT I

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL (U.S.

CONST., (Amend. VI, XIV: N.J. CONST., (1947),

Art. I, par. 10) WHEN TRIAL COUNSEL STIPULATED

STATE'S EVIDENCE.

The right to counsel is guaranteed by both the State and

Federal Constitutions.

(1947), Art.

U.S. Const.,

(Amend. VI, XIV: N.J. Const.,

The right to counsel "is the right to

I, par. 10).

the effective assistance of counsel." Strickland v. Washington, 466

U.S.

668,

Richardson,

685,

104 S.Ct.

397 U.S.

759,

2052,

2063

771 n.14,

(1984),

90 S.Ct.

State v. Davis, 116 N.J. 341, 351 (1989).

quoting McMann v.

1441,

1449

(1970);

In order to prevail on a

claim of ineffective assistance of counsel, a defendant must show

that

counsel's

performance

was

deficient

measured

"an

objective standard of reasonableness" under prevailing professional

norms, and that defendant was prejudiced thereby.

Strickland, 466

U.S. at 687-88, 104 S.Ct. at 2064-65; State v. Fritz, 105 N.J. 42,

58 (1987).

The defendant or petitioner must demonstrate as well

that there exists a "reasonable probability" that the outcome would

have been different, which exists if it is "sufficient to undermine

confidence in the outcome" of the proceedings.

Strickland at 696.

The defendant must also overcome the "strong presumption" that

counsel's actions "might be considered sound trial strategy." Id.

at 689, 104 S.Ct. at 2065.

A criminal defendant is guaranteed effective representation of

trial counsel.

Evitts v.

(1985); State v. Mitchell,

Lucey,

469 U.S.

126 N.J.

565

387,

105 S.Ct.

(1992);

Washington, 466 U.S. 668, 104 S.Ct. 2051 (1984).

830

Strickland v.

It is fundamental

that the Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee a

person accused of a crime the assistance of an attorney for his

defense.

Kimmelman v. Morrison, 477 U.S. 365, 376, 106 S.Ct. 2574,

2583 (1986); State v. Davis, 116 N.J. 341, 351 (1989).

The "core

purpose" of the constitutional right to counsel is as follows:

[T]o assure 'Assistance at trial... If no actual

Assistance' 'for' the accused's 'defense' is provided

then the constitutional guarantee has been violated.

(United States v. Cronic,' 466 U.S. 648, 654 (1984)

(citation and footnote omitted).

To satisfy the Sixth Amendment requirement,

function as an advocate for the defendant."

U.S.

745,

758,

dissenting).

103

The

S.Ct.

3308,

very premise

"counsel must

Jones v. Barnes, 463

3316

(1983)

our

adversarial

(Brennan,

system

J.,

criminal justice "is that partisan advocacy on both sides of a case

will best

promote

the

ultimate

objective

convicted and the innocent go free."

U.S.

648,

655,

104

S.Ct.

2039,

the

guilty

United States v. Cronic, 466

2045-2046

that

(1984)

(citations

■*

omitted).

The measure of the constitutional guarantee is "the fairness

of the proceeding—the measure of its adversarial balance."

v, Davis, 116 N.J. at 353.

State

The issue of effectiveness of counsel

is not the culpability of the lawyer, but the constitutional right

of the client.

People v. Lee, 541 N.E. 2d 747, 764

(Ill. App. 5

Dist. 1989).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2051 (1984),

the United States Supreme Court established a two-

prong test to identify whether counsel's assistance was adequate:

First, the defendant must show that counsel's

performance was deficient,

This requires showing that

counsel made errors so serious that counsel was not

functioning as the ' counsel' guaranteed the defendant by

the Sixth Amendment.

Second, the defendant must show

that the deficient performance prejudiced the defense.

This requires a showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a

trial whose result is reliable,

Unless, a defendant

makes both showings, it cannot be said that the

conviction... resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687.

New Jersey adopted the Strickland standard in State v. Fritz,

105 N.J. 42, 58

(1987), with respect to the State Constitution,

though the Court phrased the prejudice prong slightly differently:

[I]f counsel's performance has been so deficient as to

create a reasonable probability that these deficiencies

materially contributed to the defendant's conviction the

[State] constitutional right will have been violated.

[105 N.J. at 58]

With respect to deficient performance, the test is "whether

counsel's

conduct

fell

below

objective

standard

reasonableness. "

Strickland v. Washington, 466 U.S. at 688.

The

proper measure of an attorney's conduct in the case is " reasonable

under prevailing professional norms."

Id.

A reviewing court must

ordinarily presume "that counsel's conduct falls within the wide

range

reasonable

professional

assistance."

Id.

689.

However, the defendant may rebut this presumption by proving that

the attorney's representation " was unreasonable under prevailing

professional norms and that the challenged action was not sound

strategy."

Kimmelman v. Morrison, 477 U.S. at 384, 104 S.Ct. at

2064.

In State v.

Davis,

the New Jersey Supreme Court noted that

"the measure of an advocate s competence depends on the task to be

accomplished."

Id at356.

Accordingly,

an analysis of whether

trial counsel has rendered "reasonably competent" representation

must take into consideration the nature of the issues which should

have been addressed.

Petitioner has presented prima facie claims

of ineffective assistance of trial counsel which should be resolved

at an evidentiary hearing.

State v.

Preciose,

129 N.J. 451,

462

(1992) .

The right to post-conviction relief must be established by the

petitioner by a preponderance of the credible evidence.

Preciose,

129 N.J. at 459.

State v.

While not all post-conviction claims

require an evidentiary hearing for their resolution, see State v.

Flores,

228 N.J.

Super.

536,

589-590

(App.

Div.

1988),

certif.

denied, 115 N.J. 78 (1989), many ineffective assistance of counsel

claims do.

Post conviction relief is the appropriate forum for

raising ineffectiveness claims of counsel.

129 N.J. at 462.

See State v. Preciose,

In order to prevail on a claim of ineffective

assistance of trial counsel, a petitioner must show that counsel'sperformance was deficient as measured by an objective standard of

reasonableness under prevailing professional norms, and that the

deficiencies materially contributed to his conviction.

Strickland

v. Washington, 466 U.S. at 687-688, 104 S.Ct. at 2064-2065; State

v. Fritz, 105 N.J. at 58 (1987).

Satisfaction of both prongs of

Strickland/Fritz test often requires evidence outside the trial

record.

Therefore, ineffective assistance of counsel claims are

"particularly

development

suited

and

for

post-conviction

resolution of

evidentiary hearing.

such

claims

review,"

and

usually require

the

State v. Preciose, 129 N.J. at 460-462; State

v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

See also

Smith v. United States, 608 A.2d 129 (D.C. App. 1992); Blanco v.

Wainwright, 507 So.2d 1377, 1384 (Fla. 1987); Randall v. State, 609

A.2d 949 (R.I. 1992).

The deficient performance prong of the test for ineffective

assistance of counsel claims requires a showing that counsel was

not

reasonably

competent,

that

counsel

failed

"to

make

the

adversarial testing process work" and thus was not functioning as

the "counsel" guaranteed by the Sixth Amendment.

Strickland, 466

U.S. at 690, 687, 104 S.Ct. at 2066, 2064; State v. Fritz, 105 N.J.

at 58.

Informed strategic choices made by counsel after thorough

■f

investigation of the relevant law and facts and consideration of

all possible options are "virtually unchallengeable."

Strickland,

466 U.S. at 689-691 104 S.Ct. at 2065-2066; State v. Savage, 120

N.J. 594, 617, 621 (1990).

However, "strategy decisions made after

less than complete investigation [of law and facts] are subject to

closer

scrutiny,"

and

may

found

ineffective assistance of counsel.

sustain

Id. at 617-618.

all strategic decisions are sacrosanct."

claim

Indeed, "not

Quartararo v. Fogg, 679

F. Supp. 212, 247 (E.D.N.Y.), aff'd, 849 F.2d 1467 (2d Cir. 1988).

"[C]ertain defense strategies or decisions may be 'so ill chosen'

render counsel's

defective."

(11th Cir.

(1986).

overall

representation

Id., quoting Willis v. Newsome,

1985),

cert,

denied,

475 U.S.

constitutionally

771 F.2d 1445,

1050,

106 S. Ct.

1447

1273

The Sixth Circuit Court of Appeals has stated:

Under the analysis set forth in _______

Strickland,

_____ even

deliberate trial tactics may constitute ineffective

assistance of counsel if they fall 'outside the wide

range of professionally competent assistance.' 104 S.Ct.

at 2066.

This accords with the earlier holding of the

Sixth Circuit that '[djefense strategy and tactics which

lawyers of ordinary training and skill in the criminal

law would not consider competent deny a criminal

defendant the effective assistance of counsel, if some

other action would have better protected a defendant and

was reasonably foreseeable as such before trial.'

Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984).

The

facts

upon which a

determination can be made whether

counsel's actions were informed and reasonable, that is, based on a

thorough investigation of law and facts and consideration of all

plausible options, seldom appear in the trial record.

See State v.

Sparano, 249 N.J. Super, at 419 ("Generally, a claim of ineffective

assistance of counsel cannot be raised on direct appeal [because]

defendant must develop a record at a hearing at which counsel can

explain

the

reasons

for

his

conduct

and

inaction.")

In the matter sub judice, trial counsel stipulated evidence

for no reason,

specifically, the knife found in a street sewer,

(Da-21).

POINT II

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN

COUNSEL FAILED TO FILE A PROBABLE CAUSE MOTION

TO CHALLENGE THE STATE'S CLAIM THAT POLICE HAD

PROBABLE CAUSE TO ARREST DEFENDANT.

Claims of ineffective assistance of counsel are generally

governed by the standards set forth in Strickland v. Washington,

First,

defendant

deficient,

must

show

second,

that

counsel's

defendant must

performance

was

show the performance

prejudiced the defense. State v. Arthur, 184 N.J. 307,318 (2005).

E^art of an attorney's duty to his client is to conduct a

prompt investigation of the circumstances of the case, and explore

all avenues leading to facts bearing upon guilt as well as the

degree of guilt or penalty.

Div.

(App.

2000) .

State v.

Accordingly,

Russo,

defendant

333 N.J.Super.119,

entitled to

complete and vigorous defense, requiring that counsel, at the very

least, investigate all defenses. United States v. Baynes, 687 F.

2d.

659

(3rd.

Cir.

1982) .

result,

inadequate

pre-trial

investigation may form the basis of an ineffective assistance of

counsel claim.

An attorney's

ineffectiveness may be

apparent

within

the

context of a complete failure to investigate, because counsel can

hardly be said to have made a strategic choice against pursuing a

certain line in the investigation when he has not yet obtained the

facts on which such a decision can be made. United States v. Gray,

378

2d.

702,711(3rd.

Cir.1989).

Accordingly,

the

complete

_ i7

failure to investigate potentially corroborating witnesses cannot

be attributed to trial strategy. State v. Arthur, 184 N.J. 307,342

(2005).

The

Fourth

protects

all

Amendment

persons

from

the

United

unreasonable

States

Constitution

and

seizure,

providing that "no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized." The

New Jersey Constitution provides similar protection, N.J. Const.

art. 1/ SI 7. Except in limited circumstances, police officers must

obtain

warrant

from

neutral

judicial

officer

prior

conducting a search or seizure of property. See State v. DeLuca,

168 N.J.

626,

631

(2001),explaining that police officers must

obtain warrant before search of property unless search

If I

falls

within one of the recognized exceptions to the warrant requirement;

and see State v. Cooke

There

determination

warrant.

State

163 N.J. 657, 664 (2000).

constitutional

whether

there

Demeter,

124

preference

for

judicial

probable

cause

issue

381

(1991).

N.J.

374,

This

preference accounts for the difference in result in a "marginal

case [where] a search with a warrant may be sustainable [and] where

a search without a warrant would fail." Ibid.

When no warrant

demonstrate that

If I

sought,

the

State

has

the burden to

[the search] falls within one of the few well14

delineated

exceptions

Maryland,

167

Bustamonte.

N.J.

the

warrant

requirement. I II

471,

482

(2001);

see

412 U.S. 218, 219,

also

State

Schneckloth

93 S.Ct. 2041, 2043, 36 L.Ed. 2d

854, 858 (1973)).

In State v. Piniero, 181 N.J.13 (2004), the' Court declared

"We evaluate the evidence presented at the suppression hearing in

light of the trial court's findings of fact to determine whether

the

State met

its

burden.

"The

State must

demonstrate

preponderance of the evidence that there was no constitutional

violation

(citing

State v.

Wilson,

Probable Cause exists

within...

[the

officers']

178

N.J.

where the

facts

knowledge

and

(2003)."

circumstances

which

they

had

reasonably trustworthy information [are] sufficient in themselves

to warrant a [person] of reasonable caution in the belief that an

offense has been or is being committed." Schneider v. Simonini, 163

N.J. 336, 361 (2000)

When determining whether Probable Cause exists, courts must

consider the totality of the circumstances, and they must deal with

probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000).

determination

reasonable

suspicion

fact-

sensitive. The totality of the circumstances must be considered in

evaluating whether an officer had a reasonable suspicion to conduct

a brief investigatory stop.

State v.

(1986) .

Davis,

104 N.J.

490,

504

;

In State

Ercolino,

79 N.J.

25,41

(1979)

the

court

explained "The test of probable cause is not the articulation of

the policeman's subjective theory but the objective view of the

facts."

We would not

disagree that where police officers

are

conducting a search under an appropriate exception to the warrant

requirement the existence of probable cause will be judged by a

reviewing court on the basis of an objective view of the facts as

they would appear to a man of reasonable caution; (citing Terry v.

Ohio, supra, 392 U.S. at 21, 88 S. Ct. 1868; Brinegar v. United

States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949);

State v. Sims,

75 N.J. at 354".

With respect to a search conducted without a warrant,

the

Court further re-affirmed the principle that warrantless searches

are presumed unlawful, "the most soundly reasoned of the judicial

opinions in this area are those which are most faithful to and

consistent with the basic precept of the Fourth Amendment that any

warrantless search is prima facie invalid and gains validity only

if it comes within one of the specific exceptions created by the

United States Supreme Court.

There can be no doubt as to the

current authoritativeness of that concept. Marshall v. Barlow's

Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978);

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L.

Ed. 2d 854 (1973)."

In State v.

Id at 42.

Pineriro,

supra,

the New Jersey Supreme Court

ruled that the following fact pattern did not give rise to probable

cause justifying arrest

Wildwood Police Officer Elias Aboud was

the sole witness at the suppression hearing.

On December 8, 2000, at around 6:15 p.m., he

was in his patrol vehicle in the area of

Roberts and Pacific Avenue in Wildwood. Aboud

characterized this area as a high drug, high

crime area. Aboud observed Jose Pineiro and

co-defendant Jorge Rodriguez standing on the

corner,

with

bicycle

nearby.

Aboud

recognized both individuals. He previously had

encountered Pineiro while clearing corners in

that same area, and had received intelligence

reports indicating Pineiro way a suspected

drug dealer. Aboud had arrested Rodriguez for

child support and possibly for possession of

CDS. He also was aware that Rodriguez was a

drug user. The overhead lights in the area

allowed

Aboud

observe

Pineiro

give

Rodriguez a pack of cigarettes. Aboud was

aware that a cigarette pack sometimes is used

to transport drugs. Neither man was smoking at

the time. Immediately after the transfer, the

two men noticed Aboud. They looked at him with

shock and surprise and turned to leave the

area. Pineiro walked down Pacific Avenue while

Rodriguez mounted the bicycle and started

riding down Roberts Avenue. Aboud called for

assistance to detain Pineiro while he pursued

Rodriguez.

In State v. Smith, 155 N.J. 83 (1998), the New Jersey Supreme

Court re-visited the quantum of evidence necessary to constitute

probable cause

vis-A-vis

"street

searches".

Our

analysis

(defendant)Smith's suppression motion begins with a consideration

of whether the on-the-street search which yielded the keys was

constitutional.

Probable Cause is ordinarily needed in order to

justify a search. See State v. Novembrino, 105 N.J. 95, 106 (1987).

"The Probable Cause requirement is the constitutionally-prescribed

standard for distinguishing unreasonable searches from those that

can be tolerated in a free society.". The Supreme Court reversed

the appellate courts' decision finding that probable cause existed,

note

that

Hilongos1s

extensive

experience with drug transactions did not

contribute to the existence of probable cause

in this case. Certain suspicious behavior may

lead an experienced police officer to suspect

that a person is engaged in criminal activity.

See, e.g., Arthur, supra, 149 N.J. at 9. An

officer's experience may enable the officer to

draw

inferences

that

untrained,

inexperienced person could not. . . .However,

the mere fact that an officer is experienced

does not lower the quantum of evidence needed

to establish probable cause. An officer's

experience is only useful in establishing

probable cause if the officer uses the

experience to infer that a suspect is engaged

in criminal activity. In this case, there was

suggestion

that

Hilongos

used

his

experience to infer that defendant was selling

drugs. . .

In sum, we conclude that in the totality

of the circumstances, Hilongos did not have

probable cause when he searched defendant. . .

Taken as a whole, these circumstances did not

amount to probable cause. Therefore, the

personal search of defendant and seizure of

the keys from defendant were unlawful.

In the present matter, defense counsel failed to file a motion

to challenge whether probable cause existed in light of the fact

that there was compelling evidence that defendant was defending

?r r

himself at the time of the incident. A violent fight ensued between

approximate

one-hundred

sixty

pound

man,

(Saisi)

and

approximate six-foot-four, three-hundred twenty pound man who came

to defendant's residence to see defendant's wife. Such conduct was

prejudicial to defendant. The evidence was weak and should have

been challenged by defense counsel.

POINT III

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN

COUNSEL FAILED TO ARGUE SELF-DEFENSE DURING

ITS SUMMATION.

In State v Moore.

articulated the

158 N.J.

292(1999),

the

Supreme Court

law of self-defense, " A claim of self-defense is

based on N.J.S.A. 2C:3-4. Subsection (^provides that "the use of

force upon or toward another person is justifiable when the actor

reasonably believes that such force is immediately necessary for

the purpose of protecting himself against the use of unlawful force

by such other person on the present occasion." N.J.S.A.

2C:3-4a. A

person using protective force may estimate the necessity of its

without retreating.

N.J.S.A.

2C:3-4b(3).

use

Because deadly force,

rather than protective force, was used in this case, its use "is

not justifiable . . . unless the actor reasonably believes that

[it]

is necessary to protect himself against death or serious

bodily harm." N.J.S.A. 2C:3-4b(2).

In State v. Jenewicz, need cite,

the New Jersey Supreme Court

articulately explained the law of self defense. " New Jersey's Code

of Criminal Justice shields a defendant from criminal liability

when the defendant is found to have acted in self-defense.

See

State.v. Kelly. 91 N.J. 178, 197 98 (1984). The legal justification

for the protection of one's person is codified at N.J.S.A. 2C:34(a), which states that s]ubject to the provisions of this section

ll(.

and of section 2C:3-9,

the use of force upon or toward another

person is justifiable when the actor reasonably believes that such

force

immediately necessary

for the purpose

of protecting

himself against the use of unlawful force by such other person on

the present occasion. When deadly force is used, the justification

of self defense exculpates a defendant when he "reasonably believes

that such force is necessary to protect himself against death or

serious bodily harm." N.J.S.A. 2C:3-4(b)(2). A self-defense claim

therefore requires a jury (1) to discern whether the defendant had

a subjective belief at the time that deadly force was necessary and

then

(2)

determine

whether

that

subjective

objectively reasonable. See State v. Williams

belief

was

168 N.J. 323, 332-33

(2001); Kelly, supra, 97 N.J. at 199-200.

A person need not retreat if the person is attacked in his or

her home by someone who is not

cohabitant.

N.J.S.A.

2C:3-

4b(2)(b)(i); State v. Gartland. 149 N.J. 456, 467 (1997). See also

State v.

instant

Blanks,

matter,

313 N.J.Super.

Jeff

Sheppard

(App.

Div.

did

not

reside

1993).

In the

defendant's

residence; moreover, the only reason he was there was to intimidate

defendant and interfere with defendant's wife.

Moreover, it is not encumbent on defendant to testify/admit

the killing in order to receive the benefit of a self-defense

charge. "The trial Judge must charge the jury on self-defense "if

there exists evidence in either the State s or the defendant's case

sufficient to provide a 'rational basis

for [its] applicability."

• r

State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.)

(citing State

v. Martinez, 229 N.J. Super. 593, 560 (1989)), certif. denied, 144

N.J. 589 (1996); see also Johnston, supra, 257 N.J. Super, at 192.

That the defendant failed to admit to intentionally killing Massey

is not fatal to a claim of self-defense when the State

s version

supplied that intent".

State v. Blanks, 313 N.J.Super. 55 (App.

Div. 1998).

In State v. Rodriguez, 392 N.J.Super. 101 (App Div. 2007), is

a case remarkably similar to the matter sub iudice.

The issue

examined was whether self-defense was available to a defendant with

respect to manslaughter charges. In Rodriquez, defendant, similar

to the matter sub judice. involved the death of an individual by a

knife.

It is readily inferrable from defendant s statement to the

police that he "hit" Hobbs with the knife, not intending to kill or

seriously injure him but only intending to make Hobbs leave him

alone.

Absent

statement

was

the

justification

self-defense,

confession to manslaughter,

defendant' s

because

acted

recklessly but with no intent to kill or seriously injure Hobbs. On

the other hand, if the jury believed that defendant acted to save

himself from an imminent threat from Hobbs of death

or serious

injury, and that defendant could not retreat in complete safety,

d®fsndant s conduct constituted self-defense and he should have

been acquitted. Defendant was therefore entitled to a self-defense

’i

charge as to manslaughter as well as murder, and the trial court's

repeated instruction to the jury that self-defense did not apply to

manslaughter was prejudicial error. Id at.

Importantly, the evidence revealed that Jeff Sheppard intended

to have a sexual relationship with defendant's wife. The Rodriquez

court explained, " The Model Jury Charge on self-defense includes,

where appropriate, an explanation that sexual assault is a form of

serious bodily injury, the threat of which would justify the use of

deadly force in self-defense. Model Jury Charge (Criminal), § 2C:3• Defendant was protecting himself and his wife at the time of

the incident. Similar to the matter sub judice, the verdict sheet

Rodriquez

did

not

call

for

defendant acted in self-defense.

jury

Id at.

determination

whether

The appellate division

found this omission to be confusing. The Court ruled, "If defendant

possessed the knife for purposes of self-defense and was attempting

to defend himself at the time he used the knife,

albeit in an

honest but unreasonable belief that he needed to use deadly force,

he should have been acquitted of unlawful weapons possession and

possession for an unlawful purpose. Moreover, since we are also

reversing the reckless manslaughter conviction, the fact that the

weapons convictions merged with the manslaughter conviction for

sentencing purposes does not render the error harmless. Cf. State

v. Johnson, 287 N.J. Super. 247, 263 (App. Div.), certif. denied,

144 N.J. 587 (1996). Reversed and remanded. "

| W^S

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o^r.

To the dismay of defendant, from a reading of the transcript.

defense counsel not only did not argue vigorously,

argue

self-defense

all.

Same

but did not

was prejudicially harmful

defendant. The effect of defense counsel's summation was the same

as ^

were not given at all. More possibly, the failure to argue

se‘*’^_<^e^ense could have given the jury the impression that the

advocate for defendant did not believe that self defense was a true

justification for defendant's conduct thus leaving the jury with

the impression that the defense was not real.

POINT IV

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN

CUMULATIVE EFFECT OF ERRORS DENIED DEFENDANTS

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

The

issues

submitted

above,

either

individually

cumulatively, served to deny petitioner his right to a fair trial.

State v. Orecchio, 16 N^J 125 (1954).

Trial counsel's failures

amount to ineffective assistance, as each had the capability to

materially contribute to petitioner's conviction.

Likewise

appellate counsel's

failure to raise

these

issues

constituted

ineffective assistance of counsel as well, since it is argued that

an appellate court would have reversed on one or all of these

issues and ordered a new trial.

In State v.Orecchio, 16 NJ 125 (1954), the New Jersey Supreme

Court upheld the Appellate Division s reversal of the defendant's

convictions on three counts of a 35 count indictment,

The reversal

was

errors

based

the

cumulative

throughout the trial.

effect

numerous

In affirming the Appellate Division,

Court observed,

The sound administration of criminal justice in our

___

democracy requires that both the end and the means be

just.

The accused, no matter how abhorrent the

offense charged not how seemingly evident the guilt,

is entitled to a fair trial surrounded by the

substantive and procedural safeguards which have stood

for centuries as bulwarks of liberty in English

speaking countries.

This, of course, does not mean

that the incidental legal errors, which creep into the

but do not prejudice the rights of the accused

or make the proceedings unfair, may be invoked to

upset an otherwise valid conviction . . . [citations

omitted].. Where, however, the legal errors are of

such magnitude as to prejudice the defendant's rights,

made

the

or in their aggregate have rendered the trial unfair,

our fundamental constitutional concepts dictate the

granting of a new trial before an impartial jury.

[Emphasis added] . Id.

at 129.

More recently, in State v.

Allen, 308 NJ Super 421 (A'pp.

Div. 1998), the Appellate Division found that the cumulative effect

of errors in the charge to the jury warranted reversal of the

defendant's conviction for drug charges,

The court noted that

although simple errors may be harmless, the cumulative nature of

them may render a result unfair.

Appellant

adequately

submits

insure

that

Id.

asserts

that

defendant

at 427.

Defense Counsel

was

adequately

failed to

represented.

Defense counsel's trial strategy decisions must be made after

thorough investigation of the

possible options,

law

and

facts,

considering

State v. Savage, 120 N.J. at 594.

all

For example,

in Savage, defense counsel failed to pursue a diminished capacity

or an insanity defense, despite numerous indications of defendant's

bizarre behavior and delusions, plus a history of mental health

illness and drug abuse.

The court found this failure to obtain a

psychiatric

examination

the

defendant

was

"contrary

professional norms of competent assistance". Id. at 619.

He also

failed to inquire about defendant's mental state and prior drug use

in conversation with defendant's family. Id. at 621.

In addition, defense counsel failed to pursue any "independent

areas of investigation" in developing his defense strategy: none of

the State's witnesses were interviewed, and counsel relied strictly

on statements that were provided to him by the State.

Id. at 621.

The Supreme Court concluded: "In sum, his pre-trial investigation

was no investi

341,

Ration at all."

Similari

y* in State Zg• Davi«

the c°urt held

invest!

that

nation °f law and

an inadequate

facts robs

a strategic choice of

Presumption of

any

competence."

The

comparable situati

Petitioner asserts

on is

that a

Present in his case,

failed to

since, defense

investigate the

counsel

matter at all.

In State__v.

putsch, 229 N.j.

1988),

Super. 3 74,

the Court

385-87 (App.Div

examined whethe r the

called certain

defense attorney should

witnesses.

have

The Appellate

testimony

Division found that

pf witnesses who

the

would have

victim'

testified that the

s behavior was

alleged

inconsistent

kidnapped was

with that of

signifi cant,

someone being

and that the

evidence as

failure to

a result of the

Present this

failure

defendant of

investigate

a fair trial on the

deprived the

kidnapping issue.

there is a

Similarl y here,

reasonable Probability that,

to offer

but for counsel'

evidence in

s failure

support of

the

the defense theory, the

Proceedings would have

result of

been different.

at 690, 104 s.

jgg Strict snd, 466

Ct. at 2068,

80 L. Ed.

2d at 698.

Defense counsel's

errors

cumulatively

Were as follows:

(1) misguidi

n5 defendant as to

testifying.

f2) failin

5 to challe nge he

medical examiner'

cause of death;

s findings as to

(3) failing to

object to

hearsay evidence;

failin g to

object/correct

the Pre-sentence

report indi

eating that

Investigation

defendant had

committed a serious

crime;

357

(1989),

■>

fain

the kiln ng;

n9 to rebut

(6) faili ng to

raise

-receive

the

M°nahan

indicating same

testimony that

defendant had

committed

Brady-vioiati ons,

report;

See

certify

to wit, the faiiu

re to

ration

of defend an

Provided in

discove ry- (Dal2t

fain ng to

itiovq to

° Da20).

dismi ss the

State' s case

indictment at the

because a Prima

end of

facie case had

faiii ng to

not been

argue that

Presented;

the verdict was

of evidence,

(Dal2~20).

against the weight

These errors

denied the

individually and

defend ant the

cumulatively

right to

attorneys'

fair

errors.

trial

due to his

Betitio

roner seeks

relief

fr°m the -i

grounds that he

judgment of

conviction on the

Was

denied

the

the trial

effective

ievel becau

assistance

of counsel at

Se due to the

cumulative errors

whicl> include.

was not

* •#

POINT V

DEFENDANT'S PFTT'n

sml.

ft is

asserted that the

Procedural bars

3:22-4 and Rule 3:

contained in Rule

22-5, should not be

applied to this C3SS .

3:22-4 sets

forth

Rule

a general bar to

raising issues

conviction relief which

°n postwere not raised in

then

prior proceedings,

delineates

and

exceptions to that

general

bar.

3:22-4 Provides:

Specifically, Rule

Proceeding^ mder^th^ n0t raised in a pri

decided

in f„„at enforcement of

5 proceeding; or

injustfce; or ff, "°uid «•

Constitution olTS?

-VraV

of Ne„ Jersey. «•. United States Jr

s the

The

Petitioner' s claim of

ineffective assistance

of counsel is

cognizable under at least

two of the rule's

first,

defendant satisfies

exceptions.

exception (a),

could not

the ground for relief

reasonably have been

raised in any prior

could not have

proceeding: he

raised the ineff

ective assistance

made in this

of counsel claims

Petition °n direct

apPeal becaus

e his claims require

certainly

substantial on beyond the

While it is

not a

record.

well settled that "

substitute for direct

605 (1979),

challenge

appeal," State v. Cerhn,

it is also clear that

the

post-conviction proceedings are

effectiveness

78 N.J. 595,

a defendant is in no position to

his

trial

information regarding counsel

counsel

where

key

's performance is not in the

record.

126 Nj_J. 565, 584-85.

Accordingly, the matter

at bar falls within the

exception of Rule 3:22-4(a).

Furthermore,

the denial of relief in

this case would result in

the violation of

State y. Mitch<ai i |

the Petitioner'

s federal and state

constitutional right to counsel,

and a fair trial

and due process,

and therefore. the

exception

contained in subsection (c)

also applies.

Indeed, the Supreme

Court has interpreted

this exception "to allow

petitions for

courts to consider

post-conviction relief when the

defendant alleges

that his

constitutional rights

were seriously infringed during the

conviction proceedings. "

Mitchell. 126 N.J. at 586.

The right to

effective assistance of

counsel and the right

to a fair trial are

fundamental

constitutional rights,

so the Petitioner's arguments

fall within

exception (c) to the har against

grounds not raised in

prior proceedings.

State v ^ Sloan. 226 N.J.

Super. 605, 612 (App.

Div.), certif.

denied, 113 N.J.

647 (1988).

The Petitioner further

argues that the bar of Rule 3:22-5

should not apply in his

case since the issues raised

were not

previously adjudicated.

Furthermore, the Petitioner

asserts that

the arguments raised

are of substantial i

import, and the rule should

be relaxed in the interest

°f justice.

State v. Johns 111 N.j.

Super, 574, 576

(App. Div. 1970).

The Judgment

this matter was

of Conviction in

entered on or about

July 26,2005; further,

defendant;filed an

aPPeal and Petition

for Certificati on to the New

Jersey Supreme

Court, which

was denied. Thus,

defendant has

Prosecuted this

matter without

undue delay. As such,

the time bar

of court rules does

not bar this

petition for relief.

-30-

.£> .

CONCLUSION

Petitioner respectfully submits

that the court should find

that the Petitioner has

met his burden of proving that

counsel

failed to provide him with

adequate representation for the

reasons

cited above, and grant him

post-conviction relief.

In the alternative,

it is argued that the

Petitioner has

presented the Court with much

stronger evidence of ineffective

assistance of counsel than the minimum

requirement of a prima facie

case and that he is entitled to an

evidentiary hearing:

claim of ineffective

■ *

trial [A]

anddefendant's

appellate counsel i <.

, assistance of

types of claims] to reauire

[than other

because the facts often lie

+evidentiary hearing

because the attorney's rttJ3utside the trial record and

Thus, trial courts ordinarily'T Ti b® recIuired . ...

hearings to resolve ine/AoM h ld-9rant evidentiary

claims if a defendant

aSslstance~of“counsel

. support of post-convictPioe„Sent1ed / Erima facie claim

judgment motion, courts „h i dedref. As in a summary

light most favorable £ a Jlf . Vlew the facts 1" the

a defendant has establish^.

da"t to

whether

State v.

?. Prima facie claim.

---------- ~ ftecrose, 129 N.J. 451, 462-63 (1992).

For all the

reasons cited above, and in his

pro se submission,

the Petitioner asserts that he

was denied effective assistance of

counsel in violation of U.S.

Const. Amend. V, VI, XIV; N.J. Const.

Such inadequacies cannot be explained

away as

a reasonable exercise of trial

strategy,

Rather, it is argued,

they cannot

plausibly be interpreted as

anything other than the

ineffective assistance of

counsel.

Art. I, Par. 1, io.

- 31 -

-'t.*

Petitioner submits that he has also

prong of the Strickland

demonstrated that the secon4

test has been met.

resulting from his

The prejudice to hiifl

attorney's ineffectiveness is clear.

A motion

to suppress illegally seized

evidence should have been filed

anc

argued in this case,

and if it had been

the outcome of the trial

would

certainly have been different

for Petitioner.

In sum, for the

reasons cited above, it is

asserted that the

motion

for

post-conviction

relief

should

granted.

Alternatively, because the

Petitioner alleged facts which may be in

dispute between himself and his

1 trial counsel and the dispute

may

not be resolved by

reference to the trial record,

and because he

has presented at least

a prima facie claim in support of post-

conviction

relief,

an evidentiary hearing is

required.

See

Preciose. 129 N.J.

at 462; State v - Marshall. 143 n.j.

89 (1997).

Respectfully submitted,

YVONNE SMITH SEGARS

Public Defender

Attorney for D^-ffepdant

Dated: February

, 2009

BY:

y-‘

-MONAGHAN, ESQ.

-Assigned attorney

-32-

■ <

> •»

■v-

•v

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case Number:

Ani&i£/jy} ^

Case Name:

o5o64

INFORMAL BRIEF

DIRECTIONS: Answer the following questions about your appeal or petition for review to the best of your

ability. Use additional sheets of paper if necessary. You need not limit your brief solely to this form, but you

should be certain that any brief you file contains answers to the questions below. The Court prefers short and

direct statements.

1. Jurisdiction: What order(s) of the district court or agency are you appealing?

U '$ -3 c,* (/■.

What is the date of the order(s)?

AAAV 3. 0 ^ 4017

When did you file your notice of appeal or petition for review?

vWe

'aoij

2. Statement of the case: Explain the proceedings in the district court or before the agency

(i.e. what the district court or the agency did in deciding your case).

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4. Statement of related cases: Have you filed an appeal or petition for review in this case

before? If so, give title of case and docket number.

NO ■

Do you have any cases related to this case pending in the district court, in the court of

appeals or before the agency? if so give title of case and docket number.

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5. Did the district court or the agency incorrectly decide the facts of your case? /

what facts?

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6. Did the district court or the agency apply the wrong law (either cases or statutes)?

If so, what law do you want applied?

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7. Are there any other reasons why the district court's judgment or the agency’s decision was

wrong?____

If so, briefly state these reasons.

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8. What action do you want the Court of Appeals to take in this case?

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You may attach any documents filed in the district court or before the agency that you

think the court of appeals must see in order to decide your appeal or your petition for

review. For appeals from the district court, please keep in mind that the entire district

court record is transmitted to the court of appeals and is available for the court's

review. You must attach copies of the district court docket entries, the opinion and

order appealed, and the notice of appeal. Documents not admitted in the district court

may not be submitted to the court of appeals without permission of the court.

IMPORTANT: IF YOU ARE PROCEEDING PROCEEDING IN FORMA PAUPERIS. YOU

MUST FILE AN ORIGINAL AND THREE (3) COPIES OF THIS BRIEF AND ANY

ATTACHMENTS WITH THE CLERK. IF YOU HAVE PAID THE DOCKETING FEE, YOU

MUST FILE AN ORIGINAL AND TEN (10) COPIES OF THIS BRIEF AND ANY

ATTACHMENTS WITH THE CLERK. A COPY OF THIS BRIEF AND ANY ATTACHMENTS

MUST ALSO BE SENT TO ALL OPPOSING PARTIES. YOU MUST CERTIFY ON THE

ATTACHED PROOF OF SERVICE THAT A COPY OF THIS BRIEF AND ANY

ATTACHMENTS WERE SENT TO ALL OPPOSING PARTIES.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.