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.

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