Opposition Brief — New Jersey v. Hackett

8 Supreme Court, U.S

‘ ee

6

JOSEPH F. SPANIOL, JR.

Octrozer Term, 1985

STATE OF NEW JERSEY,

Petitioner,

US.

MIMS HACKETT, JR.,

Respondent.

On Writ of Certiorari to the Superior Court of New Jersey,

Appellate Division

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

LAWRENCE S. SCHWARTZ

Counsel of Record

Scuwartz, Pisano, Simon & EDELSTEIN

Attorneys for Respondent

293 Eisenhower Parkway

Livingston, New Jersey 07039

(201) 740-1600

LavuRrs BERTOLLO

On the Brief

ae ON ARRAN, INC MENEO ORCRETE FE ARE,

Adams Press Cerp., 1188 Raymoni Boulevard, Newark, New Jersey 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

PE Oe - II ood rccaniacaans eee eal ee il

Counter-Statememt GF Cine Cm cniiccccccciccciccececceeionss 1

Point I—The Court lacks jurisdiction to review

Bee I hoa cicercesericas acum sasarnaoamenenincneenon 5)

Pont I1—The granting of the Writ of Habeas

Corpus removed the collateral consequences

of respondent’s state judgment of conviction 8

aang eile nana 15

APPENDIX:

Stipulation of Facts (April 1, 1985) (Exhibit J-1) la

AE Bs a BER ROL MOL Res eA EN ona SO 4a

EPRGIOT STMURUBGIIIT TADIOUNE iocescccceecccctcniceeninmcemen 6a

Letter dated September 25, 1980 from John S.

Redden to Paul Montabano (Exhibit J-14) .... Sa

ii TABLE OF AUTHORITIES

PAGE

Table of Authorities

Cases Cited

Bentley v. Florida, 285 F. Supp. 494 (S.D. Fla.

RDG) enn nrnnvanesvecenonsenrensetsiovndsieapamsdepeaea ee 13

3rown v. Resor, 407 F.2d 281 (1969), cert. den. 399

U.S. 933 (1979) n--cencencesicessensasuaeeaee eee 11

Carafas v. LaValle, 391 U.S. 234 (1968) 000... 9-11, 13, 14

Fain v. Duff, 488 F.2d 218 (5 Cir. 1973), cert. den.

421 U.S. 909 (1975) x eccsecccceee eee 8

Foster v. Gilbert, 264 F. Supp. 209 (S.D. Fla. 1967) 8

Grandison v. Warden, Maryland House of Correction,

423 F. Supp. 112 (D. Md. 1976)

Hackett v. Mulcahy, 493 F. Supp. 1329 (D. NW.

TID) esevsiseocs.csennesennsnnniinconnnnssniegissnedneiaaaae 3, 8, 9

Hammond v. Lenfest, 398 F.2d 705 (2 Cir. 1968)

Hensley v. Municipal Court, 411i U.S. 485 (1973) ... 18

Matter of Hackett, 190 N.J. Super. 300, 463 A.2d 376

(App. Div. 1983) —..........2cae 4, 6, 7, 11

Matthews v. State of Florida, 463 F.2d 679 (1972) lL

Michigan v. Long, 463 U.S. 1032 (1983) -.0000002.... i)

Mizell v. Attorney General of N.Y., 586 F.2d 942

(2 Cir. 1978), cert. den. 440 U.S. 967 (1979) 002002... 11

North Carolina v. Rice, 404 U.S. 244 (1971) 00... 14

Parker v. Elhs, 362 US. 3/4 1130). 0)

TABLE OF AUTHORITIES iii

PAGE

Preiser v. Rodriguez, 411 U.S. 475 (1978) -...............---- 13

Pringle v. Court of Common Pleas, 744 F.2d 297

Cees racesspisosksSinnnsnaciemikentetnainnens 9,11

Rimmer y. Fayetteville Poiice Dept., 567 F.2d 275

ot ngs csensskacdsnmiptcacvecnanssnennowenressenninnen 12

State v. Hackett, 78 N.J. 332, 395 A.2d 200 (1978) 2

Stone v. Powell, 428 U.S. 465 (1976) .......................... 13

United States ex rel. Hickey v. Jeffes, 571 F.2d 762

aaa vanieon chains an swenneisiipsuonnensiecnnccamen 9,12

Zaffarano v. Fitzpatrick, 404 F.2d 474 (2 Cir. 1968),

MCE BIS, FEE (RII) on ccncnsscosinvnsnesninnseonsenccnove 8

United States Constitution Cited

Es cupminisvepaneensbeatinnncosseuncs 14

ST senteenassbneniibbtaincniniounnas 14

Statutes Cited

csi nipsndchninnnsinengmnanennschinnesosnccnsanoneenses 7

Te iaisiccccdiseeepnvenemnensinnodnsanecmsanincortanes 2

OD i sen cik vesnseccsneaconacshscesnorensuenoncceseonensce 2

Nee es cianonveinenperesseventanecaneoenctsvsassuseuscueasoe 2

i ny sabe cutsocntvacarasaasimeccseiaschasaneneceussonsos 12

ID disc ceanscnninnntenreceninwnnessniniensesancensocbnes +

iv TABLE OF AUTHORITIES

ee I re ee ars 5

See ea On eh eens 7

er CO ho ae UT 2

IN THE

Supreme Court of the United States

OctoserR Term, 1985

STATE OF NEW JERSEY,

Petitioner,

Vs.

MIMS HACKETT, JR.,

Respondent.

On Wrii of Certiorari to the Superior Court of New Jersey,

Appellate Division

<i.

a

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Counter-Statement of the Case

The respondent, Mims Hackett, Jr., was indicted on

May 4, 1976 by an Essex County Grand Jury, and was

charged in four counts with the crimes of atrocious assault

and battery, kidnapping and threatening to take the life

of another. Hackett entered pleas of not guilty to all of

the charges (Appendix A, Ala).

to

Hackett was tried by jury and was found guilty of

simple assault and battery (N.J.S.A. 2A:170-26), a dis-

orderly persons offense, and kidnapping (N.J.S.A. 2A :118-

1), then a high misdemeanor.’ Hackett was sentenced to

the then mandatory term of 30 to 31 years for kidnapping

and to a concurrent sentence of 6 months for the assault

(Appendix B, AGa to A7a).

On January 4, 1977, Hackett filed a Notice of Appeal

to the Appellate Division of the Superior Court of New

Jersey. The matter was remanded to permit Hackett to

move for a new trial, which application was denied.

Hackett then filed an Amended Notice of Appeal and his

conviction was affirmed in June 1978 (Rla to R2a). In Sep-

tember, 1978, the New Jersey Supreme Court denied

certification (Appendix D, Al9a). State v. Hackett, 78

N.J. 382, 395 A.2d 200 (1978).

Subsequent to the Supreme Court’s denial of certifi-

cation, Hackett began serving his sentence. On October

19, 1978, and while in custody, Hackett filed a Petition

for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254

in the United States District Court for the District of New

Jersey (R2a).

In February, 1979, and prior to a determination of his

pending habeas application, then Governor Brendan Byrne

commuted Hackett’s sentence and reduced it from 30 to

31 years to 2 to 3 years (R2a). As a result of the

commutation of his sentence, Hackett was released on

parole on July 17, 1979 (R2a).

1N.J.S.A. 2A:118-1 was repealed September 1, 1979, Under

current New Jersey law kidnapping is a crime of the second degree,

if the victim is released unharmed and in a safe place prior to

apprehension, and if not, it is a crime of the first degree. N.J.S.A.

2C:13-1,

ee

On July 31, 1980, over one year later, the United States

District Court ruled that Hackett had been deprived of

his fundamental rights and due process of law because

the trial judge had refused to allow him to call alibi wit-

nesses. Hackett v. Mulcahy, 493 F. Supp. 1329 (D. N.J.

1980). The Court ordered that a writ of habeas corpus

issue unless the State commenced retrial proceedings

against Hackett within ninety days (R4a to Roda).

The State then filed a Notice of Appeal from the grant

of habeas to the United States Court of Appeals, Third

Cireuit, which was later withdrawn, and the appeal dis-

missed on September 22, 1980. Hackett was also advised

by the Essex County Prosecutor’s Office that they did

not intend to retry him ( R6a, R8a).

Prior to 1976, Hackett had been licensed by the State

of New Jersey as a private detective. In conjunction with

his work as a private detective, Hackett was issued a

permit to carry a handgun in 1969. The carry permit was

annually renewed until 1975, except for i970. After

Hackett’s 1976 indictment, he did not then seek any renewal

of his permit to carry or of his private detective’s license

(Appendix G, A66a to AG7a).

In 1981, after the grant of habeas relief, Hackett again

applied for a private detective’s license. The Division of

State Police initially denied the application on the basis

that Hackett’s state conviction created a regulatory dis-

qualification for licensure. Following a requested hearing

by the Office of Administrative Law, where it was deter-

mined that the denial was appropriate, and a further

determination by the Superintendent of State Police not

to issue the license, Hackett appealed to the Superior

Court of New Jersey, Appellate Division. The Appellate

Division reversed and remanded the matter to the Division

of State Police for reconsideration of Hackett’s applica-

tion for a private detective’s license as if the record of

the kidnapping conviction did not exist. Matter of Hackett,

190 N.J. Super. 300, 313 (App. Div. 1983) (Appendix G,

A6o7a to A68a).

Subsequent to the ruling of the Appellate Division,

which was unchallenged, Hackett was issued a private

detective’s license by the State Police (Appendix G, A68a).

On July 24, 1984, Hackett submitted applications for

permits to purchase a handgun and to carry a handgun

to the Chief of Police of Orange, New Jersey. Thereafter,

he submitted another application for a firearms purchaser

identification card. Ilackett was advised in January

of 1985 that all of the applications had been disapproved

by the Chief of Police. Thereafter, Hackett requested a

hearing in the Superior Court of New Jersey, Law bivi-

sion, pursuant to N.J.S.A. 2C:58-3(d). By Opinion and

Order of April 28, 1985, all the permits were granted

(Appendices F and G).

Thereafter, the State of New Jersey filed a Notice of

Appeal to the Superior Court, Appellate Division, which

resulted in the aflirmance of the granting of the permits

(Appendix H, AS7a). The State’s subsequent petition for

certification to the New Jersey Supreme Court was denied

on February 19, 1986 (Appendix J, A98a).

POINT I

The Court lacks jurisdiction to review this matter

The State has invoked the jurisdiction of this Court

pursuant to 28 U.S.C. §1257(3), which provides for review

by the Supreme Court:

“(3) By writ of certiorari, where the validity of

a treaty or statute of the United States is drawn

in question ... or where any title, right, privilege

or immunity is specifically set up or claimed under

the Constitution, treaties or statutes of, or com-

mission held or authority exercised under, the

United States.”

The State argues that the Superior Court of New Jersey,

Appellate Division believed that federal law required that

it reach the decision which it made twice, namely that

the collateral consequences of Ilackett’s state conviction

were removed by the federal grant of habeas relief. There-

fore, according to the State, the decision “fairly appears

to rest primarily on federal law, or to be interwoven with

the federal law .. .” Michigan v. Long, 463 U.S. 10382,

1040 (1983).

Since the grant of habeas relief, Hackett has applied

for and been granted a private detective’s license and

various firearms permits. In connection with his applica-

tion for a private detective’s license, which was initially

denied by the Division of State Police on the basis that

his conviction created a regulatory disqualification for

licensure, the Superior Court of New Jersey, Appellate

Division held that Hackett’s conviction was to be treated

as if it had been overturned on appeal and was therefore

os = em

void as to all collateral civil disabilities. Matter of Hackett,

supra.

In reaching its determination, the Appellate Division did

not believe that either federal law mandated its decision

or that the federal habeas revised its state conviction. The

Court specifically stated at pages 306-307 that:

“The relief which Hackett seeks on this appeal

seems to be precisely the relief the petitioner sought

and obtained from the Georgia Supreme Court in

Cooper v. State, namely, an adjudication that a

conviction obtained in violation of a federa! con-

stitutional right cannot fairly be used by the State

to diminish his rights as a citizen. This relief, as

noted in Fay y. Nova (citation omitted), is unavail-

able in a federal court on habeas, which ‘cannot

revise the state court judgment; it can act only on

the body of the petitioner.’ The question before us

is whether that relief should be available in this

state proceeding.” (Emphasis added).

Similarly, in granting Hackett’s applications for firearms

permits, the trial court noted that:

“The actual setting aside of a state court conviction

is unavailable in a federal court on habeas which

‘cannot revise the state court judgment; it can act

only on the body of the petitioner.’ Fay v. Noia.

This is so because a habeas corpus proceeding

directed at a judgment of conviction is a collateral

attack on such judgment. State v. Cynkowski, 19

N.J. Super. 243, 250 (App. Div. 1952), aff’d 10 N.J.

71 (1952).” (Appendix G, A82a to A83a).

es

In affirming the trial court’s determination with respect

to the firearms permits, the Superior Court of New Jersey,

Appellate Division, relied upon its prior holding in Matter

of Hackett, supra (Appendix I, A91a).

The New Jersey Courts did not reity on federal law in

reaching its decisions, as they did not believe that the

federal habeas ruling revised the state judgment of con-

viction. The Court’s motivations for its ruling were clearly

delineated in Matter of Hackett, supra, at page 312, as

follows. First, Hackett’s conviction could not be used for

impeachment purposes under N.J.S.A. 2A:81-12. Second,

the District Court granted the writ because Hackett was

precluded from presenting his defense. Therefore, the

reliability of the facts supporting the conviction was in-

herently suspect. Third, Hackett was restored in 1981 to

his position as a public school teacher, with retroactive

reinstatement of all his tenure and pension rights, and the

Court believed it would have “. . . create(d) an insensitive

irony if (it) held that Hackett, deemed fit to teach children

in the publie schools, could not even receive the considera-

tion of a fair investigation and evaluation in his quest for

a private detective’s license.”

Since the decisions of the Superior Court of New Jersey,

Appellate Division were made on independent state

grounds, and not federal law, this Court lacks jurisdiction

and the Petition for Writ of Certiorari should be denied.

POINT II

The granting of the Writ of Habeas Corpus removed

the collateral consequences of respondent’s state judg-

ment of conviction.

The facts in this case may be unique, but they do not

present the legal issues posed by appellant in it’s Petition

for Writ of Certiorari. As argued in Point I, supra, the

State of New Jersey did not find that it was mandated to

relieve Hackett of the civil disabilities flowing from his

state conviction by virtue of the issuance of the federal

writ of habeas. Rather, the State independently exercised

its power to grant this collateral relief.

However, if the State had not chosen to do, the repon-

dent submits that the same result is required by federal

law.

Respondent does not dispute that historically the sole

purpose of the writ of habeas corpus was to test the

legality of a prisoner’s current detention, and that the

sole relief which could be granted by the issuance of the

writ was the prisoner’s release from an illegal confine-

ment. Fain v. Duff, 488 F.2d 218 (5 Cir. 1973), cert. den.

421 U.S. 999 (1975); Zaffarano v. Fitzpatrick, 404 F.2d

474 (2 Cir. 1968), cert. den. 395 U.S. 977 (1969).

However, the great writ is not a “static, narrow, forma-

listie remedy.” Foster v. Gilbert, 264 F. Supp. 209, 212

(S.D. Fla. 1967).

It is clear that the access to habeas relief has been

expanded by the liberal interpretation of the “in custody”

requirement of 28 U.S.C. §2241(¢). Foster v. Gilbert, Id.;

Hammond vy. Lenfest, 398 F.2d 705 (2 Cir. 1968); Hackett

v. Mulcahy, 493 F. Supp. 1329 (D. N.J. 1980); Pringle v.

Court of Common Pleas, 744 F.2d 297 (3 Cir. 1984).

Federal jurisdiction is not terminated with respect to

a habeas application even when the petitioner has been

unconditionally released from custody prior to adjudi-

cation. Carafas v. LaVallee, 39 U.S. 234 (1968). Prior to

Carafas,a petition was mooted if a petitioner was released

from custody prior to a decision on the merits. Parker v.

Ellis, 362 U.S. 574 (1960).

The next logical step must be that relief other than

release from custody is granted by issuance of a writ of

habeas, especially when the petitioner has been released

from custody pricr to adjudication. If this is not so, the

federal court’s consideration of these petitions would be

a meaningless exercise and a staggering waste of judicial

resources.

This view is not unsupported by case law, which has

recognized that the remedies available to a habeas peti-

tioner can be other than release from custody. As noted

by the Court in United States ex rel. Hickey v. Jeffes, 571

F.2d 762 (3 Cir. 1978) at page 765: “And while some form

of custody may be deemed jurisdictional for federal habeas

corpus, ‘the statute does not deny the federal courts power

to fashion appropriate relief other than immediate release.’

(Citation omitted).” This view had been earlier espoused

in Carafas at page 238:

“But the statute does not limit the relief that may be

granted to discharge of the applicant from physical

custody. Its mandate is broad with respect to the

relief that may be granted. It provides that ‘(t)he

court shall * * * dispose of the matter as law and

10

justice require. 28 U.S.C. §2243. The 1966 amend-

ments to the habeas corpus statute seem specifically

to contemplate the possibility of relief other than

immediate release from physical custody.”

In numerous cases dealing with the liberalization of the

“in custody” requirement, the reason given for not mooting

the petition is the recognition that many individual rights

are affected by a criminal conviction. In Carafas, this

Court stated at pages 237 to 239:

“It is clear that petitioner’s case is not moot. In

consequence of his conviction, he cannot engage in

certain businesses; he cannot serve as an Official

of a labor union for a specified period of time; be

cannot vote in any election held in New York State;

he cannot serve as a juror. Because of these dis-

abilities or burdens (which) may flow from peti-

tioner’s conviction, he has ‘a substantial stake in the

judgment of conviction which survives the satis-

faction of the sentence imposed on him.’ On account

of these ‘collateral consequences’ the case is not

moot.” (Citations omitted). (Hmphasis supplied).

* * *

“7 Petitioner is entitled to consideration of his |

application for relief on its merits. He is suffering, |

and wil! continue to sufer, serious disabilities be-

cause of the law’s complexities and not because of

his fault, if his claim that he has been illegally

convicted is meritorious. There is no need in the

statute, the Constitution, or sound jurisprudence

for denying to petitioner his ultimate day in court.”

il

Also see Brown y. Resor, 407 F.2d 281 (1969), cert.

den. 399 U.S. 933 (1970); Matthews v. State of Florida,

463 F.2d 679 (1972); Mizell v. Attorney General of N.Y.,

o86 F.2d 942 (2 Cir. 1978), cert. den. 440 U.S. 967 (1979);

Pringle v. Court of Common Pleas, supra.

The appellant recognizes that fundamental rights, such

as the right to vote, may not be denied after the granting

of a petition for writ of habecs corpus. However, it

argues tha. disabilities arising from the state court con-

viction survived the granting of the writ for state licensing

purposes. No cited case makes this distinction. Moreover,

the list of disabilities elucidated in Carafas refers both to

voting and licensing for business.

The appellant also suggests that, in liberalizing the “in

custody” requirement, this Court merely recognized that as

a result of its action more persons would be able to file

petitions, more petitions would be granted, and more

retrials would take place in the state courts. The appellant

states that the removal of collateral consequences would

come about by acquittal at retrial, rather than by operation

of the writ.

Hlowever, the State, in its analysis, does not deal with

the facts presented in the instant case—namely, that the

grant of the writ was unchallenged. The State had the

opportunity to retry Hackett and declined to do so. It

aiso could have proceeded with its appeal from the District

Court’s Order granting habeas relicf, instead of withdraw-

ing it.?

2It should be noted that the Appellate Division's ruling in the

Matter of Hackeit, supra, dealing with the respondent’s private

detective licensure, was also not challenged by the State.

12

The respondent, under the State’s theory, could never

have the collateral consequences of his conviction removed.

As the State did not retry him, a decision solely within

its domain, he would be branded for life with the conse-

quences of a conviction which was unconstitutionally

obtained.? This would be fundamentally unfair and could

not be the result contemplated by this Court.

The view that issuance of a writ of habeas corpus has

consequences beyond simply releasing the prisoner has

been affirmed. In Rimmer v. Fayetteville Police Dept, 567

F.2d 273, 276-277 (4 Cir. 1977), the Court stated:

“When, after exhaustion of state court remedies, a

prisoner succeeds in an action under §2254, he is

the ultimate victor. While the state court judgment

is neither reversed nor vacated, the prisoner is

released and the state court judgment authorita-

tively declared void. Thereafter, the state court

judgment should have no preclusive effect.”

Echoing this view, the Third Circuit in United States

ex rel. Ilickey v. Jeffes, supra, at pages 764-765 said;

“Certainly we must presume, (citations omitted),

that there are present and future collateral con-

sequences, in addition to present custody, flowing

from the invalid conviction . .. The district court

has the statutory authority to relieve Hickey from

the collateral consequences, whatever they may be,

of an unconstitutional conviction even though it

3 The kidnapping conviction could not be expunged. N.J.S.A.

2C:52-2(b).

13

would not disturb the general sentence which is

sustainable on other counts.”

In Bently v. Florida, 285 F. Supp. 494 (S.D. Fla. 1968),

the court granted the writ to a petitioner who had been

denied the effective assistance of counsel. The relief

granted by the Court was a vacation of the conviction,

believing it would be unjust to order a new trial because

the petitioner had completed his sentence. Likewise, in

Grandison v. Warden, Maryland House of Correction, 423

F. Supp. 112 (D. Md. 1976), the district court noted that

it had the authority in a habeas proceeding to order the

expungement of petitioner’s records against all persons

who maintained custody of them.

This Court’s post Carafas decisions, relied upon by the

appellant, are either not inconsistent with the respondent's

position or irrelevant to the issues at hand.

In Hensley v. Municipal Court, 411 U.S. 435 (1973), the

issue before this Court was whether an individual subject

to a conviction, who is released on his own recognizance,

was “in custody” within the meaning of the federal habeas

corpus statute. The determination was that the custody

requirement was met. In Preiser vy. Rodriguez, 411 U.S.

475 (1973), the Court held that when a state prisoner,

though asserting jurisdiction under the Civil Rights Act,

is challenging the very fact or duration of his imprison-

ment, and the relief sought is a determination that he is

entitled to immediate or speedier release from imprison-

ment, his sole federal remedy is a writ of habeas corpus.

Finally, in Stone v. Powell, 428 U.S. 465 (1976), this Court

held that a state prisoner could not be granted habeas

relief on grounds that evidence obtained through unconsti-

14

tutional search and seizure was introduced at his trial,

where the state had provided an opportunity for full and

fair litigation of the Fourth Amendment claim. In the

instant case, the District Court found that Hackett had

been denied the right to present witnesses in his own

defense in contravention of the Sixth Amendment.

Hlowever, a post Carafas decision of this Court, not

relied upon by the appellant, supports the respondent’s

position. In North Carolina v. Lice, 404 U.S. 244 (1971),

this Court noted that a habeas challenge to an invalid

sentence (instead of an invalid conviction) may be mooted

if the petitioner had served the sentence because collateral

consequences flow from the conviction and not the sentence.

The matter was remanded to determine whether there may

be collateral consequences that flow specifically from an

invalid sentence when the conviction is valid. At pages

947 and 248, the Court reaffirmed that: “A number of

disabilities may attach to a convicted defendant even after

he has left prison, and the Court has recognized the stand-

ing of such persons to challenge the legality of their con-

victions even when their sentences have been served.”

19

CONCLUSION

For the reasons stated above, respondent, Mims

Hackett, Jr., respectfully requests that this Court deny

the Petition for Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division.

Respectfully submitted,

Scuwartz, Pisano, Srmon & EDELSTEIN

Attorneys for Respondent

By Laura BeErro.io

Dated: July 29, 1986

| ApPpENDIx Fo.iows]

APPENDIX

Stipulation of Facts (April 1, 1985) (Exhibit J-1)

SUPERIOR COURT OF NEW JERSEY

Law Division Essex Country

In the Matter of the Denial of Application of MIMS

HACKETT, JR. for permits to purchase handgun,

carry handgun, and for firearms identification card.

The foregoing facts are hereby stipulated and agreed

between the parties hereto:

1. Mims Hackett, Jr. was indicted by an Essex County

CGirand Jury (Indictment No. 313775) on May 4, 1976 and

charged in four counts with the crimes of atrocious assault

and battery, kindnapping, and threatening to take the life

of another. He pleaded not guilty to all charges.

2, On November 10, 1976, after trial by jury, Hackett

was found guilty of simple assault and battery, contrary

to N.J.S.A. 2A :170-26, a disorderly persons offense, and

kidnapping, contrary to N.J.S.A. 2A:118-1, then a high

misdeameanor.

3. On January 4, 1977, Hackett was sentenced to the

then mandatory term of 30 to 31 years for kidnapping and

to a concurrent sentence of six months for the assault.

4, On January 4, 1977, Hackett filed a Notice of Appeal

with the Appellate Division of the Superior Court of New

2a

Stipulation of Facts (April 1, 1985) (Exhibit J-1)

Jersey. On June 2, 1977, the Appellate Division remanded

the matter for the sole purpose of permitting Llackett to

move before the trial court for a new trial on the basis

of newly discovered evidence. Hackett’s Motion for a

new trial was denied on August 17, 1977.

5. An amended Notice of Appeal was then filed with

the Appellate Division on August 25, 1977. On June 19,

1978, the Appellate Division affirmed tackett’s conviction.

6. A Petition for Certification was filed with the New

Jersey Supreme Court on July 3, 1978 and was denied on

September 19, 1978.

7. Following the Supreme Court’s denial of Certification,

Hackett began serving his sentence. On October 19, 1978,

he filed a Petition of Writ of Habeas Corpus pursuant to

28 U.S.C. §2254 in the United States District Court for

the District of New Jersey.

8. On February 22, 1979, Governor Brendan T. Byrne

signed an Order for commutation of Hackett’s sentence,

reducing it from 30 to 31 years to 2 to 3 years.

9, Hackett was paroled on July 17, 1979.

10. By Opinion and Order filed July 31, 1980, the United

States District Court for the District of New Jersey

ordered the State of New Jersey to commence retrial pro-

ceedings against Hackett within 90 days and further

ordered that unless such proceedings were commence a writ

of habeas corpus would issue.

il. The State of New Jersey withdrew a Notice of

Appeal of the Order of the United States District Court of

July 31, 1980, and an Order was entered by the District

= ©

3a

Stipulation of Facts (April 1, 1985) (Exhibit J-1)

Court on September 22, 1980 dismissing the appeal. By

letter dated September 25, 1980 from the Essex County

Proseeutor’s Office to Hackett’s attorneys, Hackett was

informed that the State of New Jersey had withdrawn

its Notice of Appeal of the District Court action and that

the Kssex County Prosecutor's Office did not intend to

retry him.

Dated: April 1, 1985

STEPHEN J. EDELSTEIN

Attorney for Mims Hacket, Jr.

By: Laura BERTOLLO

Essex County PRosEecu‘ror

By: Kennetu P. Puy

4a

Order

(Filed July 31, 1980)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 78-2529

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—

MIMS HACKETT,

Petitioner,

ROBERT MULCAHY and the ATTORNEY GENERAL

OF THE STATE OF NEW JERSEY,

Respondents.

This matter having come before the Court on petitioner’s

petition pursuant to Title 28 United States Code §2254

for a Writ of Habeas Corpus, and the Court having re-

viewed the record, and for the reasons set forth in an

Opinion filed this date, having determined that petitioner

is in the custody of the State of New Jersey in violation

of the laws of the United States;

It is on this 3lst day of July, 1980,

ORDERED that the State of New Jersey commence

retrial proceedings against petitioner within ninety days

and it is further

da

Order

ORDERED that unless such proceedings are commenced,

a Writ of Habeas Corpus shall issue.

HERBERT J. STERN

United States District Judge

[ hereby certify that the foregoing

is a TRUE COPY of the original on file

in my Office.

AncELo W. Locascio, Clerk

By: Witiiam J. Houusnen, Jr., Deputy

6a

a seal

Order Dismissing Appeal

(Filed—September 2). 19SO0)

Jonn J. Degnan

Attorney General of New Jersey

By: Donald S. Colburn

Kssex County Prosecutor

Essex County Courts Builidng

Newark, New Jersey 07102

(201) 961-7470

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 78-2529

UNITED STATES OF AMERICA, ex rel.

MIMS HACKETT,

Petitioner,

ROBERT MULCAHY and the ATTORNEY GENERAL

OF THE STATE OF NEW JERSEY,

Respondents.

Lip

ot

Upon application of the respondents, it is on this 22

day of September, 1980;

ORDERED that the appeal filed by the respondents be

and hereby is dismissed.

HERBERT J. STERN

United States District Judge

7a

Order Dismissing Appeal

| hereby certify that the foregoing

isa TRUE COPY of the original on file

ANGELO W. Locascio, Clerk

By: Wituiam J. Houusne., Jr., Deputy

Sa

Letter dated September 25, 1980 from John S. Redden

to Paul Montabano (Exhibit J-14.)

(LETTERHEAD OF Essex County PROSECUTOR]

September 25, 1980

Paul Montalbano, Esq.

Schneider, Cohen & Solomon, Esqs.

591 Summit Avenue

Jersey City, New Jersey 07306

Re: Mims Hackett v. Robert Mulcahy, et al.

Dear Mr. Montalbano:

Please be advised that the State of New Jersey has

withdrawn the Notice of Appeal filed in this matter. In

addition, the Kssex County Prosecutor’s Office does not

intend to retry Mims Hackett at this time.

Very truly yours,

JoHN S. REpDEN

Assistant Essex County Prosecutor

JSR :sew