Petition for Writ of Certiorari — Daniel Locus, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.
Supreme Court briefJan 5, 2022
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IN THE
SUPREME COURT OF THE UNITED STATES
DECEMBER TERM 2021
original
NO.
DANIEL LOCUS,
Petitioner,
-against-
filed~
JAN 0 5 2022
ADMINISTRATOR NEW JERSEY STATE PRISON, ET AL.
Respondents.
PETITIONER FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Daniel Locus
#000220070D
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
RECEIVED
JAN H 2022
OFFICE QF THE CLERK
SUPREME COURT, U.S.
1
QUESTIONS PRESENTED
1. Did the District Court's ruling consistent with the holdings
in Neil v. Biqqers, 423 U.S. 98, 114, 53 L.Ed.2d 140, 97 S. Ct.
2243 (1977)?
determining
now
are
only
2.
If
the
Circuit
Court's
misidentification is one of the single greatest source of
wrongful convictions in the United States why wouldn't the
District Courts take more precautions in their decision to look
at the credibility of the State's views to people on drugs more
credibility especially, when they are actually trying to get out
of confinement settings?
3. How -does State and Federal Courts assure wrongful convictions
do not happen if they are relying so heavily on eyewitness
identifications which conflict with one another?
2
PARTIES
The petitioner is Daniel Locus a prisoner at New Jersey
State Prison, P.0. Box 861, Trenton, New Jersey.
The Respondents
is the New Jersey Attorney General at Richard J. Hughes Justice
Complex, P.0. Box 112, Trenton, New Jersey, 08625.
3
TABLE OF CONTENTS
PAGES
Questions Presented
2
Parties
3
Table of Authorities
6
Decisions Below
7
Jurisdictions
7
Constitutional and Statutory Provisions Involved
7
Statement of the Case
8
Basis of Federal Jurisdiction
36
Reasons for Granting the Writ
36
A. Conflicts with Decision of Other Courts
37
B. Importance of the Questions Presented
41
Conclusion
42
4
APPENDIX
Decision of the United States District Court under Civil Action
Number 18-11527 (RMB)
May 4, 2021
Order of the United States Court of Appeals
11/27/2021
5
TABLE OF AUTHORITIES
Cases
Moore v. Illinois, 434 U.S. 220, 227, 98 SCt. 458, 54 L.Ed2d 424 (197 7) ....'...-.....39
....40
Denham v. Deeds, 954 F.2d 1501, 1504 {9th Cir. 1992)..........................................
Dennis v. Sec'y, Pa.Dep't of Corr., 834 F.3d 263, 314(3d Cir. 2016)
(en
39
banc) (McKee, C.J., concurring)......................................................................................
Innocence Project, Eyewitness Identification Reform,
www.innocenceproject.org/eyewitness-identification-reform (Last Visited Mar.
37
16, 2020) .....................................................................................................................................
Johnson v. Sublett, 63 F.3d 926, 926, 929 (9th Cir. 1995) (citing Neil v.
;..40
Biqqers, 423 U.S. 98, 114, 53 L.Ed.2d 140, 97 S.Ct. 2243 (1977)................
38
Long v. Hooks, 2020 U.S. App. LEXIS 27138 (August 24, 2020)..........................
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)....37
Neil v. Biqqers, 409 U.S. 188, 196, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972)......... 40
Neil v. Biqqers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct.
375 (1972)................... 40
Simmons v. United States, 390 U.S. 377, 383-84, 88 S. Ct. 967, 19 L. Ed. 2d
1247 (1968)................................................................:..................................................................... 37
Simmons v. United States, 390 U.S. 377, 384, 19 L.Ed2d, 1247, 88 S.Ct. 967
(1968) ................................................................................................................................................ 40
Third Circuit Task Force, 2019 Report of the United States Court of Appeals
for the Third Circuit Task Force on Eyewitness Identifications, 92 Temp. L.
Rev. 1, 6 (2019)............................................................................................................................. 38
United States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992).................................. 40
United States v. Nolan, 956 F.3d 71 (2nd Cir. 2020) ........ ;............................................. 37
United States v. Robinson, 2020 U.S. App. LEXIS 25589, (3rd Cir. 2020).............. 37
United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d
1149 (1967)........................................................................................................................................ 37
Walker v. Medeiros, 911 F.3d 629 (1st Cir. 2018)............................................................. 36
Constitutional Provisions
Amendment 5.............................................................................
Amendment 6.............................................................................
Amendment XIV to the United States Constitution
6
7
8
7
DECISIONS BELOW
The decisions of Daniel Locus is unreported and therefore,
the
order of the United States
District Court
(A.
1-81),
the
Order denying the Court of Appeals (A. 82-84) is attached.
JURISDICTION
The judgment of the United States Court of Appeals for the
Third Circuit was entered on October 27,
2021.
Jurisdiction is
conferred by 28 U.S.C. §2254(1).
CONSTITUTIONS AND STATUTORY PROVISIONS INVOLVED
Amendment 5 Criminal actions Provisions concerning Due process of
law and just compensation clauses.
This case involves Amendment 5 which provides:
No person shall be held to answer for a capital,
or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or m
the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself,
deprived of life,
liberty,
or property,
nor be
without due process of
law; nor shall private property be taken for public use, without
j ust compensation.
Additionally
Amendment
XIV
Constitution, which provides:
7
to
the
United
States
Section
1:
All persons born or naturalized in the United
States, and subject the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.
No States
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States;
nor shall any
State deprive any person of life, liberty, or property, without
due
process
of
law;
nor
deny
to
any
person
within
its
jurisdiction the equal protection of the laws.
Amendment 6 Rights of the accused.
And finally Amendment 6 which provides:
In all criminal prosecutions,
the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him;
to have compulsory
process for obtaining witnesses in his favor,
and to have the
Assistance of Counsel for his defense.
STATEMENT OF THE CASE
For the purpose of facts, the petitioner must rely on
his Statement of the Case.
10:30
p.m. ,
Anthony Ball was
On June 9,
2008,
at approximately
shot andx- mortally
killed on the
sidewalk in front of an abandoned house at 556 Pine Street in
Camden, New Jersey Ball was struck in his left temple and taken
to the hospital and placed on a respirator.
8
(8T147-9 to 22;
8T175-13 to 176-14; 8T179-20 to 21;
8T193-4t 9; 8T218-19 to 22;
9T88-25 to 91-6; 10T111-18 to 112-5; 11T18-12 to 21).
Ball was a
homeless crack user, and had a reputation in the neighborhood for
stealing the stashes from drug dealers and had been shot on two
prior occasions.
(5T13-3 to 14-17;
Ball died on June 11,
22) .
7T44-16 to 46-21;
8T813 to
2008 two days after his hospital
admission, after his mother authorized medical personnel to turn
off life support. As autopsy disclosed that he had been shot from
six to 14 inches away with a .380 caliber bullet.
23; 8T 196-22 to 197-19; 8T199-16 to 200-22;
(8T151-11 t.o
9T156-5 to 157-15;
9T162-8 to 163-13; 10T111-18 to 112-5);
Pine Street was a 32'2" feet wide city street which ran
west to east.
The abandoned house at 556 Pine Street was on.the
south side of the street,
on a one black street segment crossed
The
by Broadway to the west and East 6th Street to the west.
northeast
corner
of
the
Broadway/Pine
Street
intersection was
occupied by a gas station which was accessible from both Broadway
and Pine Street.
The gas station was thus on the other side of
the street from the abandoned house and diagonally to the left.
(7T40-24 to 41-1; 7T184-7 to 13; 7T190-4 to 25; 7T199-24 to 2004;
8T26-14 to 22;
8T212-6 to 8;
7T202-5 to 22;
7T219-21 to 25;
9T113-9 to 25; 10T100-21 to 23; 10T171-2 to 7; 11T68-4 to 6).
Although
Broadway
and
East
6th
Street
were
the
most
immediate intersecting north-south streets to the segment of Pine
Street
on
which
the
abandoned
house
stood,
this
Pine
Street
segment itself was crossed by a narrow 5'5" to 7'8" feet wide
9
alleyway which was officially designated St. John's Street,
The
alley headed north to south and thus essentially ran parallel to
Broadway and East 6th Street, but between those two streets.
The
abandoned house at 556 Pine Street stood on the Southeast corner
of the intersection of the alleyway with Pine Street.
(7T184-7
TO 13; 7T190-4 TO 25; 719.9-24 to 200-4; 9T114-10 to 15).
The opposing entrances to the alleyway as it crossed Pine
Street were offset by approximately the width of one house, with
the southbound entrance located toward the west of the opposing
entrance to the north.
thus, a person walking south in the alley
and reaching Pine Street would find himself directly facing the
abandoned corner house at 556 Pine Street instead of the opposing
mouth of the alleyway, which would be diagonally one house length
to the right and could see that the abandoned house at 556 Pine
Street
lay diagonally toward the
opposing
corner
(7T10-3
intersection.
streetlight
house
was
on
to
right
from its
the
northeast
101-7;
7T231-21
positioned near
the
southeast corner of that intersection.
corresponding
corner
to
of
the
232-15).
One
abandoned house
over
the
This was the sole street
(7T209-2 to 8;
light in the immediate segment of Pine Street.
7T231-1 to 8; 8T13-12 to 14-3; 8T23-5 to 24-1).
The
abandoned
Pine
house
Street
addresses
stretching
from
across
the
consisted of a series of row houses.
the
street
from the
of
the
alleyway
(8T29-7 to 24) .
The.row
right
house located at 559 Pine Street, painted green and known to the
residents of the area as
"Lawrence's house" was the third row
10
house
in
toward
the
east
from
the
7;
7T231-14
to
16).
corner
(7T101-20 to 102-1;
alleyway/Pine Street intersection.
to
northeast
"Lawrence's
house"
functioned
of
the
7T207-5
as
the
neighborhood drug house.
Heroin was sold inside the house and
crack
outside.
cocaine
was
sold
Certain
drug
addicts
were
permitted by the drug dealers to enter the house and get high.
(7T198-6 to 22; 8T115-9 to 116-2; 9T34-17 to 37-18). "Lawrence's
house" was located diagonally across the street toward the east
from
the
abandoned
house
at
a
30
distance from "Lawrence's house"
to
45
degree
angle.
The
to the abandoned house across
the street was not measured; however, the row house immediately
further to the east of "Lawrence's house" 561 Pine Street,
was
determined
the
to
be
abandoned house.
72
feet,
11
inches
from
the
front
of
(9T79-11 to 80-21; 11T68-20 to 70-3).
In contrast to the row houses on the opposite side of the
street, the abandoned house was detached, with an empty lot with
overgrown vegetation wider than the alley itself on the other
side of the house from the alleyway.
(7T104-18 to 24).
A clump
of tall weeds and bushes lay between the abandoned house and the
alleyway.
(7T189-16 to 191-24;
7T240-11 to 241-10).
The area
behind the house featured shrubs and concrete, was littered with
drug paraphernalia and was used by drug addicts to get high.
(7T52-13 to 18; 7T126-7 to 12).
The
police
shortly thereafter.
were
alerted
to
the
shooting
and
arrived
The area immediately around the spot where
Ball fell was searched, and a discharged .380 automatic cartridge
11
was found on the first step of the front steps of the abandoned
(9T77-3 to 78-20;
house next to where Ball fell.
100-15; 11T30-2-4).
10T99-14 to
As a .380 automatic discharges empty shells
two to four feet to the right and there' was no object in the
street
against which a bullet
could ricochet back toward
the
steps,
the
empty
m
placement
of
the
shell
on
the
step,
conjunction with the autopsy finding of a wound inflicted from
six to 14 inches away,
gave rise to an inference that Ball was
shot at close range by someone who was approaching him from the
direction
of
abandoned
house
diagonally
the
alleyway
instead
across
the
on
of
the
by
street
sidewalk
someone
from
to
92-3;
who
front
was
row
of
the
approaching
houses
9T144-17
around
"Lawrence1s
House."
Inexplicably,
the vegetative area between the side of the house
and the alleyway,
(9T91-23
the
in
22).
the paraphernalia littered area behind house
and the rear of the lot next door were not searched.
78-4) .
to
The police never found the
caused Ball's death.
(9T77-7 to
.380 caliber handgun which
(9T9-8 to 10).
The police questioned persons around the homicide scene
to determine if they saw anything related to the shooting but no
one said they had seen the shooting.
person
who
was
walking
in
the
(10T101-22 to 102-2) .
alleyway
at
the
time
of
One
the
shooting and approaching Pine Street, informed the officers that
he saw a 6'0" man with cornrows (a hair style) whom he had never
seen before
shooting.
running away
from the
(10T180-4 to 16) .
area
from the
area
of the
The police learned that a woman had
12
called 911 to report that the shooter wore either cornrows or
braids.
(11T82-13 to 83-7).
MISIDENTIFICATION OF DEFENDANT AS "POO" OR "POO BEAR"
The following day,
the
Camden
County
June 10th,
Prosecutor's
Investigator James Bruno of
Officer
questioned
Crystal
Montgomery about the shooting. Montgomery was walking with Tony
Ball on
Ball
was
Pine
Street towards
"Lawrence's house"
(P.Ex.
Montgomery
shot.
76-78).
shortly before
reported
that
noticed the presence of a suspicious vehicle at the time.
to 43-11; 10T181-14 to 20).
in
front
of the
she
(9T42-7
She stated that she stood with Ball
abandoned house
at
556
Pine
Street
and then
walked across the street and entered "Lawrence's house" and got
high there with a friend, leaving Ball outside.
(10T182-9 to 13).
Montgomery claimed that the last person she saw defendant with
was a man nicknamed "Poo" or "Poo Bear." (10T103-2 to 18; 10T18223 to 183-2).
She said she did not see the shooting or anyone
running form the scene.
(10T183-11 to 12).
The next day, June 11, Bruno spoke with Ball's mother at the
hospital and asked her if she was familiar with anyone nicknamed
"Poo" or Poo Bear."
that a
Ball's mother said that she had been advised
man with that name had attempted to visit Ball at the
hospital but had left before she arrived.
that
she
had heard that
She further stated
the person had blood on his
shorts.
(10T103-25 to 104-20).
Bruno proceeded to check a government computer base used by
the Intelligence Bureau of his office and ascertained that the
13
nicknames "Poo" or "Poo Bear" were associated with a person in
the area named James Williams.
In contrast, the nicknames were
not associated with defendant.
to 184-1) .
(10T104-24 to 105-5;
10T183-20
Bruno obtained a photograph of Williams and showed it
to an anonymous female,
"who verified" that the person depicted
was known as "Poo Bear." (10T183-14 to 19).
Bruno
discovered
that
Williams
had
been
arrested
in
Camden in the early morning hours of June 10 approximately three
hours
after
Ball's
shooting while attempting to break into
house.
The
burglary
was
not
associated
with
a
theft,
a
which
indicated that Williams had been looking for a place to stay.
Bruno learned that Williams was still in the Camden County Jail.
It
was
learnt
after
William's
arrest
three
hours
after
the
shooting and continued incarceration since his arrest indicate
' that he must have been at the hospital within an hour or two of
Ball's admission.
10T184-4 to 8;
10T185-15
to 20). Williams stated he had NOT seen the defendant.
(P.Ex. 35-
64).
(10T105-4 to 106 -5;
(Emphasis Applied).
Bruno went to interview Williams at the jail.
Williams
told Bruno that he had been in the neighborhood on Broadway with
Ball on the evening that Ball was shot, but that he and Ball had
• parted on Broadway and he was
not
near
the
shooting when
to
24) .
it
<
occurred.(10T106-14
possession
of
to
Williams's
18;
10T186-21
shorts
from
the
jail
ascertained that they appeared to be blood stained.
108-9; 10T109-13 to 15) .
Bruno
took
personnel
and
(10T107-5 to
Testing confirmed that the stain was in
14
fact
blood
but
ruled
out
Ball's
(10T4-22 to 6-3; 12T118-3 to 13).
blood
as
being
the
source.
This did 'not justify the fact
that, Williams denied being with the victim
when he was killed
or that he was seen at the hospital by the victim's mother and
hospital staff.
On the following day, June 12, Bruno was informed by his
superiors that a woman named Patricia Myers had information
regarding the homicide and went to see her at her methadone
clinic.
(7T220-14 to 20; 10T108-14 to 24; 10T111-7 to 9).
was a 49 year-old homeless longtime drug addict.
Myers
She was
Caucasian, in contrast to defendant, who was African-American.
(7T183-19 to 185-6; 7T190-24 to 191-5; 7T223-4 to 13; 11T127-12
to 23).
Myers's daughter was giving housing assistance from the
Camden County Prosecutor's Office because she was a cooperating
witness in a criminal case.
Myers told her daughter that she was
present at the homicide, and her daughter contacted the
Prosecutor's Office with this information.
(7T220-14 to 18;
7T248-1 to 10). Myers proceeded to secure the same type of
assistance from authorities as her daughter, for the same type of
service.
(7T223-4 to 15; 8T32-25 to 35-12).
Myers told Bruno that she had witnessed Ball being shot
by a man named "Poo" or "Poo Bear", who was reacting to a theft
from a drug stash.
She said she was leaning against the top step
15
of the stoop of 561 Pine Street, the row house on the same side
of Pine Street as "Lawrence's house" but one house further east
toward East 6th Street, when she saw this.
(7T222-7 to 18; 8T22-
14 to 24; 8T37-3 to 5; 8T229-15 to 230-1; 9T79-14 to 80-21;
10T144-19 to 21; 1T2112 to 16; 11T26-7 to 27-4; 11T81-25 to 82-
- ID •
She claimed that she observed Ball walking toward the
alleyway from the gas station exclaiming in a loud voice that he
would get high that night.
She said she saw Ball turn into the
alleyway, bend down by a drug stash located by the alleyway-side
of the abandoned house at 566 Pine Street, and retrieve something
from the stash.
Ball then walked out of the alleyway, turned
right onto Pine Street and began heading east on the sidewalk in
- front of the abandoned house.
According to Myers, "Poo" had
observed Ball's theft of the stash from across the street near
"Lawrence's house".
shoot Ball.
Supposedly, "Poo" exclaimed that he would
"Poo" then entered "Lawrence's house," emerged with
a gun, walked across the street to Ball and shot him.
(8T32-1 to
14; 11T67-10 to 72-1; 11T77-24 to 80-11).
Bruno showed.Myers a photograph of Williams. Myers denied
that Williams was the man who shot Ball; however, she
acknowledged that he resembled the assailant.
4) .
•(7T221-15 to 222-
Following Myers' statement, the Prosecutor's Office provided
her with housing assistance for two to three months, food
vouchers and transportation expenses to her drug clinic.
16
(7T223-
4 to 224-8). This is in contrast to the fact that Investigator
Bruno already knew the defendant was "not" in fact Poo Bear from
his earlier investigation and Myers initial statement that she
"did not witness the incident."
Bruno next learned that a joint law enforcement strike
force had executed a search warrant at "Lawrence House" on the
previous evening, June'11.
A number of person inside the house
and one person outside were arrested and questioned about the
shooting. These individuals claimed they had not seen the
incident.
(10T112-19 to 113-11).
The police observed another
person, a male who identified himself only as D.L., outside the
house and questioned him as well.
D.L. denied that he had
anything to do with the drug dealing at the house and was not•
arrested.
(10T113-16 to 115-23).
Bruno determined that D.L. was actually defendant.
He
proceeded to compile a collection of photographs from a
government data base with the intention of showing it to persons
in the area in order to provoke them into providing information.
The collection consisted of 22 subjects; 20 were on separate
sheets of paper and 2 were together on one sheet.
Defendant’s
photograph was included in the collection as was Williams's.
The
only criteria for the collection was that the subject have some
possible connection to "Lawrence's house."
117 2-3, 119-18).
(10T115-24 to 116-18,
Defendant's photograph taken six weeks earlier
17
in early May, depicted him wearing cornrows.
William’s
photograph, his arrest photo on June 10, did not feature him with
cornrows.
(10T120-3 to 23; 10T148-19 to 149-16).
On June 21, Madonna Caraballo, another homeless drug
addict who had abused a variety of drugs for years, was arrested
for shoplifting by the Berlin police and incarcerated in the
Camden County Jail.
Caraballo was then 43 years old and had
multiple prior criminal convictions. While still in the Berlin
police station, she
happened to see a photograph of Ball on a
police desk and exclaimed, "That's Tony Ball."
Asked the next
day about the homicide, she said she knew nothing.
(7T40-4 to
18; 7T46-15 to 18; 7T70-10 to 11; 7T79-13 to 80-2; 7T84-23 to 8514) .
One day later, on June 23, Caraballo was drug sick in the
Camden County Jail and was desperate to get out'of jail.
Accordingly, she wrote a note to an internal affairs officer in
the jail which stated, "I got info, on Poo Bear and more.
me and I’ll help you.
I got to get out."
Help
(7T87-2 to 88-17).
Later that day, she sent a second desperate note, declaring,
"Will you please see me today? I got info, like I said I would.
Please help me."
(7T89-2 to 7).
On July 1, Caraballo's request was brought to the
attention of Bruno, and Bruno went to the jail to interview her.
Caraballo told him that she was behind the abandoned house at 557
Pine Street when Ball was shot and thus did not see the shooting
18
but that her friend, Walter Boyd, had witnessed it.
could lead Bruno to Boyd.
She said she
(10T131-16 to 132-7) .
Caraballo left the jail temporarily in Bruno's custody
the next day, and she directed him to an area behind a liquor
store which Boyd frequented and point him out.
Boyd then 55
years old, was yet another homeless long-time drug addict. Bruno
approached Boyd, and Boyd agreed to return with him to the
prosecutor's office.
(8T34-11 to 25; 10T132-4 to 13).
Boyd and Caraballo were driven to the prosecutor's office
in separate vehicles and placed in separate rooms.
In
preliminary discussions about the homicide, Boyd told Bruno that
another person, Angela Bumpers, also witnessed the shooting and
that Bumpers was then in the Camden County Jail.
Bruno went to
the jail to meet Bumpers, secured her agreement to discuss the
shooting, and escorted her to another room of the prosecutor's
office.
(10T132-12 to 133-21).
Bruno proceeded to tape record interviews with Boyd,
Caraballo and Bumpers and showed each of them his 22 photo
collection.
(10T134-5 to 142-15).
Boyd stated that he had
purchased drugs on Pine Street by "Lawrence's house" on the night
of the shooting and identified defendant's picture in the
collection as the person he "bought drugs from."
Boyd said that
as he was walking away from the sale in the direction of
Broadway, he heard a shot and saw Ball falling to the ground,
19
with the person who had just sold Boyd drugs running from the
spot where Ball fell and no one else around the victim.
(8T49-4
to 51-9; 10T134-19 to 135-25).
Caraballo asserted that she had entered the Pine Street
area with Boyd with the intention that Boyd would purchase drugs.
She said that she was in a wooded area behind the abandoned house
at 556 Pine Street waiting for Boyd to purchase the drugs.
She
stated that when she heard the shot, she got scared and left the
place where she was waiting and met Boyd on Broadway.
to 13; 7T128-2 to 14; 7T130-2 to 15).
{7T124-4
Caraballo identified a
copy of defendant's photo in the array as depicting a person she
knew as "Poo Bear" from whom she regularly would buy drugs, and
wrote "Poo Bear" on the back of the copy.
(10T138-9 to 13;
10T140-21 to 25).
Bumpers, then 50 years old and yet another long-time drug
addict with a criminal record, stated that defendant's array
photography depicted a person she would buy drugs from and
claimed she had known him for 15 years.
knew defendant as "Poo."
Bumpers denied that she
(9T4-1 to 16; 9T39-17 to 40-7; 9T67-20
to 68-20; 10T141-11 to 142-4).
Bumpers claimed she was sitting
down at the gas station when the shot occurred.
She said she saw
defendant run from the victim when he fell, and that she saw
defendant with a silver object in his hand which she believe was
a gun.
(10T141-11 to 142-7).
20
i
Caraballo was released from jail the following day, July 3, and
placed by the Prosecutor's Office in a hotel.
Also on that day,
photograph
to
photo.graph.
{7T98-2 to 25).
Bruno visited Myers and displayed defendant's
her.
Bruno
Myers
did
not .show
Myers
any
other
identified defendant's photograph depicting
"Poo" the man she claimed had shot Ball.
1
(10T143-11 to 145-1).
The prosecutor's office proceeded to obtain a warrant to
arrest defendant for
July 7.
alleged
Defendant was arrested on
(10T146-20 to 25).
The
\ Myers,
Ball's shooting.
trial
Boyd,
occurred
the
homicide.
Caraballo and Bumpers provided accounts
of their
observations
nearly
on
two
that
years
evening
after
which
were
often
inconsistent with each other and inconsistent with their prior
statements 1
Myers
was
the
only
one
of
those
witnesses
claimed he or she actually saw defendant shoot Ball.
who
(7T205-25
to 206-15).
Myers now asserted that she observed the shooting
not
steps of 561 Pine Street,
from the
as she initially told
Bruno,
but rather from the steps of a row house three or four
houses
further
east
towards
East
6th
house" on the same side of the street.
Street
from
"Lawrence's
This placed her three or
four houses further down the street from the abandoned house than
she first claimed.
(7T206-18 to 21; 7T231-9 to 20).
Myers claimed that as' she sat at this location, she saw Ball
walking in her direction from the gas station on Broadway "be-
21
bopping along" and exclaiming in a boisterous tone that he was
going to get his fix of crack to get high that night and would do
anything to get his drugs.
(7T201-2 to 16; 2T239-12 to 22). Myers
said Ball entered the alleyway by the side of the abandoned house
and retrieved a clear plastic bag which she knew contained little
bags of crack from defendant’s' stash, located by the side of the
abandoned house.
Myers
(7T201-17 to 22; 7T203-15 to 24; 7T242-9 to 19).
said defendant observed Ball's
raid from a vantage
point across the street from the abandoned house and between the
corner of the alleyway and "Lawrence's house" and declared that
he was "going to shoot his fucking brains out."
16) .
(7T204-9 to 205-
Myers could not remember if defendant had then gone into
"Lawrence's house" and emerged with a gun,.as she had alleged in
her statement to Bruno,
or instead simply had gone across the
street toward Ball and shot him.
(7T248-25 to 249-4; 8T11-9 to
10). Myers claimed she could see the gun and that it was a dark
obj ect.
(8T11-9 to 10).
Myers said that she immediately got up
after the shot and .ran toward East 6th Street.
ran away.
(7T219-14 to 22).
Significantly,
street
at
Defendant also
the
Myers
time
of
said
the
she
did not
shooting,
see
anyone
including
in
the
specifically
Caraballo or Boyd, even though she was looking for other people
who might supply her with drugs.
230-24) .
(7T225-16 to 226-9; 7T229-13 to
She also admitted that she knew from past observations
22
that defendant kept a stash by the side o'f the abandoned house in
the alleyway.
(7T91-1 to 7; 7T92-15 to 17; 7T94-14 to 18; 7T95-
15 to 16).
Whereas Caraballo formerly had stated that she was behind
the
abandoned
purchase
drugs,
house
at
556
Pine
she
now
claimed
Street
waiting
for
Boyd
to
she
behind
the
house
to
was
further a plain she had devised earlier that day with Ball to
steal
defendant's, drugs.
Under
the
plain,
Ball
would
lure
defendant behind the house by informing him that Caraballo was
waiting for him there.
Caraballo would then distract defendant
by performing oral sex on him while Ball would raid defendant's
stash
in
the
alleyway
to
side
6;
of
the
7T190-4
abandoned
alleyway.
(7T186-4
Moreover,
Ball had a reputation for stealing stashes,
knew immediately upon seeing the
theft from the stash.
to
7;
house
7T208-17
shooting that
in
to
it was
the
23).
and she •
over a
(8T8-13 to 9-7).
Caraballo provided a startling different account from her
statement two years earlier.
Whereas she formerly had excluded
any reference to Ball in recounting that she had arrived on Pine
Street with Boyd, she now said that Ball was with "them" when she
and Boyd got there.
16) .
(7T91 1-7; 7T92 15-17; 7T94 14-18; 7T95 15-
Whereas she formerly had stated that she was behind the
abandoned house at 556 Pine Street waiting for Boyd to purchase
drugs she now claimed she was behind the house to further a plan
23
she had devised earlier that day with Ball to steal defendant’s
drugs.
Under the plain,
Ball would lure defendant behind the
house by informing him that Caraballo- was waiting for him there.
Caraballo would then distract defendant by performing oral sex on
him while Ball would raid defendant's stash on the alleyway side
of the abandoned house.
{7T51-16 to 24; 7T59-16 to 60-3; 7T109-7
to 8; 7T110-24 to 111-1).
Caraballo said that Boyd knew nothing
of the plain to raid the stash.
(7T92-10 to 11) .
Caraballo claimed that she,
Boyd and Ball walked together
down the middle of Pine Street in the direction of "Lawrence’s
house"
and that
she
split
off
from the men at
the
alleyway,
walked to the waiting point at the rear of the abandoned house
and
partially
(7T47-1
to 22;
7T129-1 to 11).
disrobed
to
7T107-9 to
entice
16;
defendant
7T109
5-25;
when
he
arrived.
7T110-6 to
111-12;
She claimed that she partially disrobed while
she waited in order to entice defendant when he arrived.
60 to 90 seconds, defendant emerged behind the house.
desire to have sex with her,
After
He had no
told her to leave the area,
and
disappeared from view in a direction other than the alleyway.
(7T60-4 to 65-1; 7T110-16 to 20).
Caraballo claimed she pulled her clothes together and walked
behind the
abandoned house to the
headed north toward Pine Street.
alleyway,
As
turned right
and
she walked she saw Ball
ahead of her crouched down by defendant's stash by the side of
24
the abandoned house.
Pine Street,
She said Ball straightened up,
walked to
turned right and disappeared from view.
(7T63 5,
64-8; 7T65 5 to 23; 7T66 13 to 15; 7T120 2-13; 7T123 5 5 to 9).
Caraballo stated that five feet before she reached Pine
Street, she saw the flash of the gunshot.
Boyd pulled her out of
the alleyway and hustled her down Pine Street toward Broadway and
then down Broadway.
As they ran, Boyd told her that the person
who was shot was Ball.
According to Caraballo, Boyd exclaimed,
"I can't believe Poo did that!"
(7T69 2 to 19; 7T151 25- 7T152
12) .
Madonna Caraballo
In satisfying the five factors under Neil v. Biggers, the
petitioner submit the following:
The five Neil v, Biggers factors under Caraballo; the court
must consider that Ms. Caraballo in her initial statement to on
Tuesday, July 1, 2008 at approx. 1:00 p.m. Investigator * met
with Invest. Joseph Coleman, Internal Affairs Unit, Camden County
Corrections regarding the homicide of Anthony Ball.
Ms. Caraballo stated that "She did not witness the murder
but spoke with someone she knows as "Walt" who told her he
witnessed the murder and knows the identity of the shooter."
[P.Ex. 92-93] .
It was not until over 2 years later on May 20, 2010 at 12:39
p.m.
Caraballo
admitted
she was
25
"very high"
on
"wet"
a mind
altering substance consisting of mint leave and embalming fluid
which slowed her thinking and distorted her sense of time, during
these events.
Indeed,
she was under the impression that they
occurred as the sun was setting instead of 10:30 p.m., when the
shooting occurred.
(7T56 22 to 24, 7T111 23- 7T112 24; 7T113 8
to 24).
Caraballo
observations
said
that
surrounding
(7T117-17 to 18).
the
she
and
shooting
Boyd
on
discussed
the
their
following
day.
However, she did not tell anyone that she and
Ball were attempting to carry out a plan to steal defendant's
stash until she gave detectives a statement on May 20, 2010 two
weeks before the beginning of the trial and three days after she
again needed the detectives' assistance.
Her need for help this
time arose because she had been evicted from a drug treatment
program three days earlier,
had no place of her own,
and was
temporarily living with her sister, who would evict her six days
later.
By the time of the trial, Caraballo was living in State-
supplied quarters.
(7T72 23
74 7, 7T81 4 to 8; 7T103 5 to 15;
7T117 4 to 20; 7T172 10 to 24; 7T173 17 to 26).
Account Of Walter Boyd Jr.
Walter Boyd provided an account which contradicted
Caraballo's testimony in many key areas.
He claimed that on the
night of the shooting, he and Caraballo had entered Pine Street
from Broadway with the intention of buying drugs.
26
Contrary to
Caraballo's contention that Ball was with them, Boyd stated that
he and Caraballo were alone together and were so for the
preceding 20 minutes to one hour.
Indeed, he had not seen Ball,
whom he knew from buying crack together on prior occasions, and
all that day before entering Pine Street.
8T62-22 to 63-17; 8T86-1 to 15).
(8T42-18 to 43-11;
Contrary to Caraballo's claims
that she walked with Boyd and Ball down the middle of Pine Street
toward "Lawrence's house," Boyd said he left her by a phone booth
at the gas station on the corner of Broadway and continued alone.
Ms. Caraballo made another statement stating that, she witnessed
the incident and decided to come forward because she wanted the
detectives to do their job.
[P.Ex. 18-34].
The five factors could be considered under the Neil v.
Biggers test under this alone as to (1) the witness opportunity
to view the suspect at the time of the crime, 2) the witness
degree of attention to the perpetrator at the time of the crime,
3) the accuracy of any earlier description of the suspect, 4) the
level of certainty demonstrated at the confrontation and 5) the
lapse of time between the time of the crime and the confrontation
of Ms. Caraballo changing her statement and now claiming she
witness petitioner committing the crime against the victim.
The petitioner will rely on the Investigator's Bruno's
testimony as to the question whether the petitioner was "Poo
Bear."
27
Bruno proceeded to check a government computer base used by
the Intelligence Bureau of his office and ascertained that the
nicknames "Poo" or "Poo Bear" were associated with a person in
the area named James Williams.
In contrast, the nicknames were
not associated with defendant.
(10T104-24 to 105-5; 10T183-20 to
184-1).
Bruno obtained a photograph of Williams and showed it to
an anonymous female, "who verified" that'the person depicted was
known as "Poo Bear." (10T183-14 to 19).
The police observed another person, a male who identified
himself only as D.L., outside the house and questioned him as
well.
D.L. denied that he had anything to do with the drug '
dealing at the house and was not arrested.
(10T113-16 to 115-
23) .
On Tuesday, July 19, 2008, Senior Investigator Patricia
Taulance advised Investigator Bruno that the true name of the
individual identified as "D.L." in the H.I.D.T.A. Task Force
report is Daniel Locus, aka: "Philly."
So, Investigator Bruno was well aware who "Philly" was and
who was. "Poo Bear" according to the alleged witness Caraballo
initial and later statements and testimony claiming she was high
on "Wet" at the time of the incident.
Boyd said that when he arrived at "Lawrence's house," four
or five persons were standing outside. Defendant was one of them.
(8T62-22 to 63-13; 8T101-8 to 16). Boyd agreed to buy one bag of
28
crack for $10 from defendant, handed him the money and waited for
him to retrieve the drugs.
While defendant typically maintained
a stash on the alleyway said of the house,
he on this occasion
walked- on a diagonal to the lot between the abandoned house and
the neighboring house, pulled a brown bag - not a clear plastic
bag as Myers maintained - from a bushy area, and returned to Boyd
with $10 bag of crack.
walked
back
on
the
Boyd accepted the drugs and turned and
"Lawrence
house"/gas
station
side
of
the
street toward Broadway, leaving defendant in front of "Lawrence's
house." (8T62-22 to 63-13; 8T64-15 to 18; 8T84-22 to 85-1; 8T91-3 to
13;
8T116-12
to
15).
To note:
Caraballo
is
person who testified under oath petitioner was
also
the
same
"Poo Bear"
and
said she believed the incident happened when the sun was going
down when the crime happened around 10:30 p.m.
stated she was high on wet so,
and admittedly
nothing was clear to her.
How
credible is her statement.
Boyd said as he was approaching the alleyway,
he saw Ball
cross Pine Street at the alleyway five feet in front of him. Ball
was
walking with
a
black woman whose
name- he
did not
know.
(8T65-12 to 25; 8T69-4 to 5; 8T103-7 to 10; 8T105-4 to 12). Boyd
crossed
the
alleyway,
walked
an
Broadway and then heard a shot.
additional
10
steps
Within two seconds,
toward
he turned
around to see what had happened and saw Ball fall to the ground
while defendant was in the middle of the street running in the
29
direction of "Lawrence's house."
around Ball when Ball feel.
Boyd said he saw no one else
(8T65-23 to 66-10; 8T66-5 to 6; 8T70-
4 to 9; 8T71-3 to 25; 8T95-15 to 19).
approximately
40
defendant
possession
in
feet
away
of
from
a
Boyd asserted that he was
Ball,
gun.
and
Boyd
he
did
not
see
estimated
the
time
elapsed between his purchase of drugs and the shot variously as
between 15 seconds and two minutes.
(8T75-19 to 76-19; 8T77-22 to
78-2; 8T95-23 to 24; 8T99-15 to 16; 8T114-6 to 15).
Boyd disputed Caraballo's claim that he pulled her out of
the alleyway.
Instead, he "picked up speed" and continued in the
direction of the gas station.
Indeed, he sped up because he was
physically afraid and was worried about being
stopped by the
police for questioning with drugs in his pocket.
Boyd said he
found Caraballo walking around and waiting for him at the gas
station
about where he had left
her.
Bumpers was
with her.
(8T81-14 to 25; 8T86 25 to 87-9; 8T97-8 to 17). Boyd said he took
Caraballo with him Broadway and left the area. As they walked he
told her,
shot him."
did
not
"Tony just got shot. The guy I just bought drugs from
(8T73-1 to 6; 8T79-23 to 80-8; 8T97-22 to 23).
know
defendant
by
any
nickname;
thus
contrary
Boyd
to
Caraballo's contention,
Boyd could not have exclaimed,
believe Poo did that."
Instead, it was Caraballo who later told
"I can’t
Boyd that the person he had bought drugs from was called Poo.
(8T98-2 to 16).
Account Of Angela Bumpers
30
{
Angela Bumpers provided a description of events which was
startling different
she
from Myers
had
and Boyd's
purchased heroin
accounts.
stated
that
from
house'
earlier that evening and consumed it,
inside
Bumpers
"Lawrence's
but she had come
down from her high and had smoked several doses of crack in an
effort to ward off the effects of coming down.
9T30-6 to 31-5; 9T32-15 to 23).
(9T8-10 to 9-3;
At one point, defendant ordered •
her away from the front of "Lawrence's house," and she had gone
to sit on the step of the pay booth of the gas station at the
corner of Broadway and Pine Street, where she continued to smoke
crack,
From
her
vantage
point,
she
had
a
clear
view
of
the
abandoned house at 556 Pine Street and the alleyway on which the
house
stood.
(9T8-3
Boyd
to
and
6;
9T8-25
Caraballo
to
9-3;
by
to
her
she
as
11-2).
Bumpers
said
however,
this was two hours before the shooting and she did not
recall seeing them thereafter.
walked
9T10-16
sat;
(9T29-10 to 22).
In the time leading up to the shooting,
Bumpers was still
sitting on the step in the gas station smoking crack, waiting for
her bus and "trying to get [her] self together."
13) .
(9T7-25 to 8-
When the shot occurred, Bumpers was looking away and didn't
not see where the ' assailant came from or anyone shooting a gun.
She looked toward the sound of the shot and saw Ball clutch his
head
and
fall
to
the
round.
She
claimed
standing over him and looking down at him.
she
saw
defendant
Defendant then slid
something silver into his pants and ran off southbound into the
31
(9T12-23 to 13-23; 9T15-1 to 6; 9T52-18 to 53-5; 9156-
alleyway .
7 to 58-10; 9T60-25 to 61 -1).
Bumpers admitted to having an acrimonious relationship with
She said that she used to
defendant from their prior dealings.
be permitted to stay in "Lawrence's house" whenever and as long
as she wanted,
socialize
which created an environment in which she could
and get
high around the
following an argument with her,
house.
(9T35-4 to 36-19) .
clock,
but
that
defendant,
banned her from staying in the
Indeed, the antipathy between the two
was such that after defendant had chased her away from in front
of the house on the night of the shooting and she assumed her
position on the step of the gas station pay booth, defendant rode
his
bike
to
the
gas
station
Bumpers
neighborhood.
defiantly
addition,
Braxton
as
Boyd
a
had declared
out
that
of
she
the
would
and
say she saw him shoot someone
Where was the bike.
and ran into an alley.
Caraballo,
her
how could she have saw the defendant ride the
bike to the gas station and then,
In
ordered
{9T41-5 to 10). In conjunction with
remain sitting on the step.
this testimony,
and
to
presenting
Bumpers,
witness.
the
the
testimony
State
Braxton,
who
of
Myers,
also, preserited
Ernest
had
multiple
prior
convictions, testified that he was employed as a drug dealer by
the
same person in
"Lawrence's house
(10T11-18 to 20; 10T25-6 to 26-11).
who employed defendant.
He .claimed that a few days
before the shooting, defendant asked him in front of "Lawrence's
house" for bullets for his gun.
When Braxton asked him what kind
32
of gun he had, defendant told him he had a "380" and displayed a
.380 caliber automatic handgun.(10T10-6 to 19).
Braxton admitted
that he was extremely tired when this happened, explaining that
he had not slept in three or four days because he was "working"
dealing
crack
incessantly.
{10T58-8
to
59-3;
10T60-10
to
12;
10T67-12 to 69-1).
Braxton further testified that he was incarcerated in the
Camden County Jail at the time of defendant's arrest and had a
conversation with him there.
(10T13-18 to 14-23).
Supposedly,
he asked defendant why he was in the jail, and defendant replied,
"That
he
was
"locked
up
for
the
gay
boy's
[Ball
murder]
Braxton asked which "gay boy" and defendant described Ball had a
birthmark.
(10T16-22 to 17-4).
Braxton .then said,
I heard he
got hit in the back of the head." Defendant responded, "he didn't
get hit in the back, he got hit right the fuck here," and pointed
to his left temple.
(10T17-10 to 18-25).
The credibility of Braxton's allegations was destroyed on
cross examination. Initially, Braxton claimed to defense counsel
that he had found out that Ball had been killed,
shot in the back of the head,
and had been
from his cell mate, who told him
that defendant had referred to the homicide and wanted to speak
with Braxton because he needed his help in getting an
plea."
{10T35-9 to 21; 10T38-17 to 20).
"insane
When Braxton spoke with
defendant, defendant allegedly asked him to put him in touch with
the
prosecutor's
defendant's
office.
request
for
He
claimed
help,
he
33
that
as
attempted
a
to
result
of
facilitate
defendant's
contact with the prosecutor's
office by sending a
letter to that office and then giving a statement to Bruno on
July 25, 2008.
(10T19-18 to 20-24; 1035-24 to 36-21; 10T37-18 to
20; 10T57-12 to 19).
However,
Braxton was
forced to
admit .that
he
learned of
/
Ball's death from his wife, not his cell mate, and that his wife
had informed him of the shooting only hours after it occurred.
(10T38-21
to
39-2).
Moreover,
he
admitted
embellishing
his
statement to Bruno on July 25 with an assertion that defendant
had actually declared to him,
in the back of the head.
• the
street
head."
his
and I
shot
"I didn-'t shoot that motherfucker
I walked in the house, I walked across
that motherfucker
in the
front
of
the
{10T46-14 to 47-5). Pressed as to the discrepancy between
direct
examination
account
of
observing
defendant
demonstrating, through the pointing of the finder, of a location
where someone shot Ball, and the allegation in his statement that
defendant himself,
in words,
front of the head,
Braxton insisted that defendant gestured to
the head.
admitted to shooting Ball in the
(10T47-5 to 15).
Braxton also admitted that defendant
told him that the "Poppies"
{defendant's term for Puerto Ricans)
were
in the area at the time of the
defendant
"Poppies."
was
trying
to
put
blame
shooting.
for
the
Braxton
shooting
on
said
the
(10T61-7 to 21; 10T84-3 to 21).
Braxton insisted that his statement to Bruno was given in an
effort to help defendant.
Asked what kind of assistance he was
providing with such an exculpatory statement,
34
Braxton declared
that
he
was
attempting
to
put
defendant
in
touch
prosecutor's office so he could work out a deal.
10T57-12
to
19).
Then,
in
the
statement
was
not
Braxton
claimed his
intention
to
help
passed
his
information
Braxton was
discovery
in
onto
an informant.
a
tacit
other
helpful
(10T54-14
to
changed when
to
to
the
(10T54-1 to 7;
acknowledgment
people
with
that
defendant,
defendant
demonstrate
55-7).
the
When
that
it was
pointed out to him that defendant first obtained his discovery
many months after Braxton provided the statement, Braxton said he
"just remembered" that his contention changed when defendant- told
him
in
prison
during
the
conversation
in
which
defendant
allegedly pointed at his head that Braxton was lucky he was not
passing through the Pine Street area the evening of the homicide
or he would have been "Lit up." Braxton provided no reason why
defendant, who ostensibly was seeking Braxton's help, would want
Braxton "lit up."
(10T55-10 to 13; 10T56-6 to 10; 10T70-24 to 71
-167) .
In' addition to destroying his own credibility with his
testimony, Braxton also diminished the credibility of Myers,
Caraballo and Bumpers.
Although, those witnesses insisted at
trial that defendant's nickname was "Poo" or "Poo Bear" Bumpers
assertion contradicted her pre-trial statement position that she
did not know defendant by that name, Braxton asserted
unequivocally that he had never known defendant to go by that
nickname.
Instead, he said defendant's nickname was "Philly."
35
(10T45-10 to. 23).
Braxton knew him two to three years and used
to live next door to his mother.
(10T8-18 to 9-14) .
Lastly, trial counsel set the standards during summation
when he stated, about Angela Bumpers nodding off on the jury
stand high on drugs and responds to the demeanor of a witness:
Demeanor certainly goes to whether a witness comes in this court
and nods into their coffee.
How can they have the perception to
understand and recall when they can't stay alert in court? (June
15, 2010, at pg. 51, line 7-11). Counsel's summation on Myers was
even more alarming no one took into account especially the State:
Even though, Myers says she saw the murder happened, she never
saw Boyd come down the street and purchase drugs.
However, she
see Anthony Ball from all the way down the street coming from the
gas station, reach down "around a corner" to steal a stash from
at'least a hundred feet away, approx. 10:30p.m. at night with one
street light for the whole area, while she is literally in the
dark.
The question,"How does one see a person from around a
corner without a parallel view but literally around a corner?"
The District Court was clearly in error to deny the petitioner a
"Certificate of Appealability" in this matter.
These witnesses
were the main witness for the State.
BASIS FOR FEDERAL JURISDICTION
This
case raises a question of interpretation of the Due
Process Clause of the Fourteenth Amendment to the United States
36
Constitution and a right to a fair trial pursuant to the Sixth
Amendment of the United States Constitution.
The district court
had jurisdiction under the general federal question jurisdiction
conferred by 28 U.S.C. §2254.
REASONS FOR GRANTING THE WRIT
A. Conflicts with Decision of Other Courts
In Walker v. Medeiros, 911 F.3d 629 (1 St Cir. 2018)(The
United States Supreme Court has held that a defendant's federal
constitutional right to due process bars the government's use at
trial of evidence of a witness's out-of-court identification of
the defendant if the identification procedure employed by the
government is so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.)
In United States v. Nolan, 956 F. 3d 71 (2nd Cir. 2020)
(Eyewitness identification testimony is notoriously prone to
error. As the Supreme Court.recognized over a half-century ago,
i
"[t]he vagaries of eyewitness identification are well-known; the
annals of criminal law are rife with instances of mistaken
identification." United States v. Wade, 388 U.S. 218, 228, 87 S.
Ct. 1926, 18 L. Ed. 2d 1149 (1967); see also Simmons v. United
States, .390 U.S. 377, 383-84, 88 S. Ct. 967, 19 L. Ed. 2d
1247 (1968); Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243,
53 L. Ed. 2d 140 (1977). The results can be devastating. For
example, as Appellant here points out, according to the Innocence
37
Project, eyewitness misidentification was present in an
astonishing 71 percent of the cases in which subsequent DNA
testing established the factual innocence of wrongfully convicted
defendants. See Innocence Project, Eyewitness Identification
Reform, www.innocenceproject.org/eyewitness-identification-reform
{Last Visited Mar. 16, 2020).)
In United States v. Robinson, 2020 U.S. App. LEXIS 25589,
(3rd Cir. 2020)( An identification procedure violates the Due
Process Clause if it is unnecessarily suggestive and results in a
substantial risk of misidentification. An identification
resulting from an unduly suggestive identification procedure need
not be suppressed if the identification possesses sufficient
aspects of reliability, for reliability is the linchpin in
determining the admissibility of identification testimony. To
determine whether an identification is reliable, appellate court
considers:
(1) the witness's opportunity to observe the
perpetrator during the commission of the crime;
the witness was at that time;
(2) how attentive
(3) whether the witness
has provided a prior accurate description of the perpetrator;
(4)
the witness's level of certainty at the time of the
identification; and (5) the length of time between the crime and
the witness identification.
Recently in Long v. Hooks,
2020 U.S. App. LEXIS 27138
(August 24, 2020), the Third Circuit confronted this same issue
38
by convening a task force consisting of "a diverse group of
judges, lawyers, professors, and law enforcement agents ... to
study the issue of eyewitness identification." Third Circuit Task
Force, 2019 Report of the United States Court of Appeals for the
Third Circuit Task Force on Eyewitness Identifications, 92 Temp.
L. Rev. 1, 6 (2019)
[hereinafter Task Force Report]. The Task
Force noted that "[e]yewitness misidentification is the single
greatest source of wrongful convictions in the United States."
Id. at 10 (internal quotation marks omitted). And it cataloged
modern understandings of the psychology surrounding eyewitness
identification, noting that over the past several decades, "a
burgeoning body of research has shed light on how human
perception and memory function. We now understand that the brain
does not work like{2020 U.S. App. LEXIS 77} a video camera."
Id. at. 12; see also Dennis v. Sec'y, Pa. Dep’t of Corr., 834 F.3d
263, 314 (3d Cir. 2016)
(en banc)
(McKee, C.J., concurring)
("In
the last thirty years, over 2,000 studies have examined human
memory and cognition and their relationship to the reliability of
eyewitness identifications. This impressive body of scholarship
and research has revealed that eyewitness accounts can be
entirely untrustworthy. As the International Association of
Chiefs.of Police has concluded,
[o]f all investigative
procedures employed by police in criminal cases, probably none is
39
less reliable than the eyewitness identification. • ti
(alteration
in original) . .
Which in the instant case reliability and misidentification
is the main issue. "The Third Court of Appeals did not explain
why a reasonable juror would not debate the District Court's
denial of petitioner's claim but denied it."
Due process protects the accused against the introduction of
evidence which results from an unreliable identification obtained
through unnecessarily suggestive procedures. Moore v. Illinois,
434 U.S. 220, 227, 98 SCt. 458, 54 L.Ed2d 424 (1977).
The Ninth Circuit has stated, "To constitute a due
process violation, the photographic identification procedure must
be so impermissibly suggestive as to give rise to a’very
substantial li'kelihood of irreparable misidentif ication. " Denham
v. Deeds, 954 F.2d 1501, 1504 (9th Cir. 1992){(citing Simmons v.
United States, 390 U.S. 377, 384,. 19 L.Ed2d, 1247, 88 S.Ct. 967
(1968); United States v. Carbajal, 956 F.2d 924, 929 (9th Cir.
1992) .
The identification procedure must be impermissible or
unduly suggestive under the totality of the circumstance's.
Johnson v. Sublett, 63 F.3d 926, 926, 929 (9th Cir. 1995)
(citing
Neil v. Biggers, 423 U.S. 98, 114, 53 L.Ed.2d 140, 97 S.Ct. 2243
(1977). There are five factors among the totality of
circumstances to be considered by the court is assessing the
reliability of the identification procedures:
40
(1) the witness' opportunity to view the suspect at the time of
the crime,
(2) the witness degree of attention to the, perpetrator
at the time of the crime,
(3) the accuracy of any earlier
description of the suspect,
(4) the level of certainty
demonstrated at the confrontation and (5) the lapse of time
between the time of the crime and the confrontation.
Neil v.
Biqqers, _409 U.S. 188, 196, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972);
Finally as argued in the 3rd Cir. Herein, Neil v. Biqqers, 409
U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972){automatic exclusion
of identification testimony is not required even if the procedure
is impermissibly suggestive, if totality of circumstances show
testimony is reliable under factors identified.
The petitioner submit that the 3rd Cir. Erred by not
remanding this case to the United States District Court because
of the conflict of the 3rd Cir. ruling v. the identification
procedures met in other circuits concerning this issue which, now
appears to be a wide range of knowingly misidentification are
putting a lot of innocent people behind bars like the instant
petitioner herein.
Importance of the Questions Presented
The importance of the questions presented is based on the
fact that the petitioner is innocent.
If this court does not
grant this writ, the petitioner will be added to the already
statistics stated in Long v. Hooks,
41
2020 U.S. App. LEXIS 27138
-^
(August 24, 2020) concerning wrongful convictions. It should not
take the innocence project to clear a petitioner of knowingly
wrongful identifications.
For this reason, the petitioner request a reverse and remand
to the District Court for an evidentiary hearing and/or retrial
of the petitioner in the State Court.
CONCLUSION
For the foregoing reasons,
certiorari should be granted in
this case.
Date:
Daniel Locus, Pro Se
New Jersey State Prison
42
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.