2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2004

Hubbard v. Pinchak

Precedential or Non-Precedential: Precedential

Docket No. 00-5150

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Hubbard v. Pinchak" (2004). 2004 Decisions. Paper 379.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/379
PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

 

No. 00-5150

 

FRANK HUBBARD,

Appellant

v.

STEVEN PINCHAK; THE ATTORNEY

GENERAL OF THE STATE OF NEW

JERSEY; PETER VERNIERO

 

On Appeal from the United States

District Court for the District of New

Jersey 

(D.C. Civil No. 97-cv-03717)

District Judge: Hon. Jerome B. Simandle

 

Argued May 5, 2004

Before: SLOVITER and FUENTES,

Circuit Judges, and POLLAK, District

Judge*

(Filed: August 5, 2004)

 

Mary Gibbons (Argued)

Toms River, New Jersey 08757

Attorney for Appellant

Peter C. Harvey

Attorney General of New Jersey

Trenton, New Jersey 08625

Linda K. Danielson (Argued)

Deputy Attorney General

Of Counsel and on Brief

Division of Criminal Justice

Appellate Bureau

Trenton, New Jersey 08625

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Petitioner Frank M. Hubbard seeks

a writ of habeas corpus pursuant to 28

U.S.C. § 2254. He procedurally defaulted

his claims in the state courts. He seeks to

overcome the procedural default by

asserting his “actual innocence,” Bousley

v. United States, 523 U.S. 614, 623

(1998); Schlup v. Delo, 513 U.S. 298, 327

(1995), a claim that the District Court

rejected. We must therefore examine the

scope and contours of the claim of actual

innocence as a gateway to consideration of

the merits of petitioner’s habeas claim

notwithstanding the procedural default.

 

* Hon. Louis H. Pollak, Senior

Judge, United States District Court for

the Eastern District of Pennsylvania,

sitting by designation.
2

FACTS

On June 22, 1981 in Camden, New

Jersey, David O’Neal1 was killed by a

gunshot wound to the face. Thereafter, the

State of New Jersey indicted Hubbard on

six felony counts, including murder,

robbery, conspiracy to commit robbery,

and firearms violations. Hubbard pled not

guilty to all counts. Also charged as

defendants were John Monroe, who

entered a guilty plea in exchange for a

thirty-year sentence, and Stanley Banks,

who was a fugitive at the time of trial.

Monroe testified at trial to the

details of the crimes pursuant to a plea

agreement with the prosecutor. He stated

that he, Hubbard, and Banks met at his

residence where they discussed robbing

O’Neal, that he assumed Hubbard had a

gun because he observed a bulge in

Hubbard’s front, that Hubbard showed him

a gold watch to sell to O’Neal, and that, at

Hubbard’s direction, Banks drove to

O’Neal’s. When they arrived, Hubbard

handed O’Neal the gold watch, pulled his

revolver and, when O’Neal reached for his

own gun, Hubbard shot O’Neal in his face.

Hubbard and Banks returned to their

vehicle and Monroe ran home.

Lore lie Truluck, Mon roe’s

girlfriend, testified that she, Monroe,

Hubbard, and Banks drove to O’Neal’s

place of residence intending to rob him,

that the men went into the residence while

she remained in the vehicle and did not

witness anything related to their entry, but

that she saw Hubbard and Banks run back

to the vehicle, and that Hubbard instructed

someone to drive and wrapped the gun in

a towel. Truluck’s account was consistent

with Monroe’s subsequent testimony.

Gary Hammon, the lone eyewitness

who was not involved in the incident, also

testified. Hammon lived “[r]ight across

from” O’Neal and although he did not see

the shooting itself, he testified that there

were three perpetrators involved, all of

whom he saw conversing with each other,

and two of whom he saw knock on

O’Neal’s door. Hammon testified that all

the men were black, and that there was a

shorter man who was “[f]ive foot

something” and a taller man who was “six

foot something” or “six foot two.” Trial

Tr. at 14-15 (Apr. 22, 1982). Hammon

testified that when O’Neal opened the

door, one of the two men shot him. All

three men fled without entering O’Neal’s

residence. He did not get a good look at

any of their faces.

The jury found Hubbard guilty of

felony murder and robbery, and not guilty

of the handgun possession charges. On

July 6, 1982, the state court sentenced

Hubbard to life imprisonment with a 25-

year parole ineligibility on the felony

murder charge, and a 20-year concurrent

term on the robbery count.

 

1 The victim’s name appears

throughout the record as either “O’Neal”

or “O’Neil.” We will conform to the

District Court’s spelling and use

“O’Neal” herein.
3

There was no testimony linking any

gun, putatively the murder weapon, to

Hubbard and no forensic evidence linking

him to the victim or the scene of the crime.

Hubbard had filed a Bill of Alibi

Particulars before the grand jury charged

him in which he stated he was in Atlantic

City, New Jersey on the night of the crime,

which took place in Camden, New Jersey.

PROCEDURAL HISTORY

This matter has traveled up and

down the state courts of New Jersey, and it

is unnecessary to recount the full details

here. We will limit the facts to the

proceedings necessary to decide this

appeal from the District Court’s order

denying Hubbard’s petition for a writ of

habeas corpus. Hubbard filed two separate

petitions for post-conviction relief (PCR)

in the state courts – the first in August

1988, and the second in May 1994. Both

were dismissed as untimely, and therefore

were procedurally barred by New Jersey

state law. Although the Appellate

Division of the New Jersey Superior Court

agreed that the claims raised in Hubbard’s

second PCR petition were time barred, it

nevertheless stated that it “carefully

reviewed each of the seven [claims] and

[is] satisfied that there is no basis to grant

[Hubbard] relief.” App.II at 209.

On July 28, 1997, Hubbard filed a

pro se petition for habeas corpus relief in

the District Court, raising seven claims

that he had set forth in his second PCR

petition. They are:

(1) that the indictment

against him was based on

the perjurious testimony of

the arresting detective

before the grand jury; (2)

that his sentence does not

comply with New Jersey

sentencing criteria; (3) that

the trial court improperly

deprived him of his right to

cross-examine one of the

state’s witnesses; (4) that

the police violated his Fifth

Amendment right to counsel

by ignoring his request for

an attorney during custodial

interrogation; (5) that the

trial court gave a prejudicial

suppl emental ju r y

instruction on the law of

accomplices; (6) that the

trial court improperly

adm itt e d certa i n

photographs into evidence;

and (7) that his trial counsel

p r ovided ineff ecti v e

assistance.

App.I at 3.

The District Court dismissed two of

the grounds raised by Hubbard for

substantive reasons and they are not at

issue in this appeal. The District Court

denied the requested writ of habeas corpus

on the five other claims because of

Hubbard’s procedural default, stating,

“Petitioner has not argued that he is

innocent of the crime for which the jury

convicted him,” App.I at 10, and
4

concluded, “Not having shown cause for

his procedural default below or actual

innocence of the crimes for which he was

convicted, Grounds One, Three, Four, Six

and Seven of petitioner’s habeas corpus

petition are not cognizable in this court.”

App.I at 11.

Hubbard then filed a pro se motion

of reconsideration of the District Court’s

denial of habeas relief. In response to this

motion, the District Court held that

although the motion for reconsideration

was timely filed,

[Petitioner] does not raise

any factual or legal point

overlooked by this Court.

Petitioner challenges this

Court’s statement that he

did not raise actual

innocence as an issue in his

petition, but offers no

evidence that he did raise

such an issue without

procedural default, and also

offers no evidence that he is

actually innocent for the

charges he is presently

incarcerated for. Mr.

Hubbard’s petition was

denied on [the five relevant

grounds] due to procedural

default, so even if he had

demonstrated some issue of

actual innocence here, it

would not have changed this

Court’s earlier denial of his

application.

App.I at 26 (emphasis added).

We issued a certificate of

appealability on the issue “whether the

District Cou rt p ro pe rly r ejected

Appellant’s attempt to overcome the

procedural default of claims #1, #3, #4, #6

and #7 by asserting his ‘actual

innocence.’” Appellant’s Br. at 2. We

have jurisdiction to review the denial of

the habeas writ under 28 U.S.C. §§ 1291 &

2253.

DISCUSSION

I.

The State contends that Hubbard’s

allegation of actual innocence is not

properly before this court because it

appeared “[f]or the first time in his motion

for reconsideration of the [D]istrict

[C]ourt’s opinion.” Appellee’s Br. at 15.2

Hub bard’s motion fo r

reconsideration as well as his habeas

petition were filed pro se. We have

previously stated that a petitioner’s

 

2 At oral argument the State

conceded, “The whole issue of timing is

an academic issue because in the first

instance, there is no viable claim of

actual innocence,” and that if such a

viable claim were made even in a motion

for reconsideration, in the interest of

justice the District Court would have had

to address it. Tape of Oral Argument

(May 5, 2004).
5

failure to specifically

articulate his claim as one of

“actual innocence” should

not preclude review of the

merits of his claim. [The

petitioner] clearly argued

that the government could

not satisfy the factual

prerequisites of a . . .

conviction. When properly

viewed through the more

forgiving lens used to

construe pro se habeas

petitions, we conclude that

the claim of “actual

innocence” was properly

before the District Court.

United States v. Garth, 188 F.3d 99, 108

(3d Cir. 1999).

This case presents a similar

situation. Among the grounds Hubbard

raised in his habeas petition were

“ineffective trial counsel” who “did

nothing in [his] defense” and that the

“whole trial was a mockery.” App.II at 5.

In response to the State’s claim of the

procedural bars, Hubbard stated that

“[f]ederal review is necessary to prevent a

fundamental miscarriage of justice,” and

that there was “a reasonable probability”

that but for counsel’s unprofessional errors

“the results of the proceedings would have

been different.” Supp. App. at 125, 127.

When viewed through a “more

forgiving lens” that does not require

petitioners to “specifically articulate”

claims of actual innocence, Garth, 188

F.3d at 108, this language in the pro se

petition and traverse was sufficient to

preserve Hubbard’s actual innocence

claim. In fact, he pled not guilty, and he

filed a Bill of Alibi Particulars placing him

in Atlantic City at the moment of the

crime, which occurred in Camden. We

therefore reject the State’s argument that

Hubbard’s claim of actual innocence is not

properly before us.

II.

As the Supreme Court reiterated

this past term, a federal court will

ordinarily not entertain a procedurally

defaulted constitutional claim in a petition

for habeas corpus “[o]ut of respect for

finality, comity, and the orderly

administration of justice.” Dretke v.

Haley, 124 S. Ct. 1847, 1849 (2004). This

is a reflection of the rule that “federal

courts will not disturb state court

judgments based on adequate and

independent state law procedural

grounds.” Id. at 1852; see Wainwright v.

Sykes, 433 U.S. 72, 81 (1977). The

principal exception to this general rule

precluding federal review of habeas claims

that have been procedurally defaulted is

for petitioners who can show “cause and

prejudice” for the procedural default or

that a “miscarriage of justice” will occur

absent review. Cristin v. Brennan, 281

F.3d 404, 414 (3d Cir. 2002). An

allegation of “actual innocence,” if

credible, is one such “miscarriage of

justice” that enables courts to hear the

merits of the habeas claims.
6

The petitioner in Schlup v. Delo,

513 U.S. 298 (1995), the leading case on

the “actual innocence” doctrine, had made

both an assertion of constitutional error at

trial and a claim of innocence. The

Supreme Court stated that because of the

assertion of constitutional error, his

conviction was not “entitled to the same

degree of respect as one. . . that is the

product of an error free trial.” Id. at 316.

The Court continued,

Without any new evidence

of innocence, even the

existence of a concededly

meritorious constitutional

violation is not in itself

sufficient to establish a

miscarriage of justice that

would allow a habeas court

to reach the merits of a

barred claim. However, if a

petitioner . . . presents

evidence of innocence so

strong that a court cannot

have confidence in the

outcome of the trial unless

the court is also satisfied

that the trial was free of

nonharmless constitutional

error, the petitioner should

be allowed to pass through

the gateway and argue the

merits of his underlying

claims.

Id. Hubbard relies on this precedent as the

basis for us to “pass through the gateway”

to the merits of his habeas claims. As we

explained in our decision in Cristin, 281

F.3d at 412, a “fundamental miscarriage of

justice” will remove the bar on claims that

have been procedurally defaulted, and

actual innocence will show such a

fundamental miscarriage of justice.

Because the cause and prejudice

exception to the procedural bar for

defaulted claims is itself based on

equitable considerations, the Supreme

Court has made clear that the actual

innocence exception to the unreviewability

of procedurally defaulted claims should be

applied only in the rarest of cases. See

Dretke, 124 S. Ct. at 1852. As it explained

in Dretke:

[I]t is precisely because the

various exceptions to the

procedural default doctrine

are judge-made rules that

courts as their stewards

must exercise restraint,

adding to or expanding them

only when necessary. To

hold otherwise would be to

license district courts to

riddle the cause and

prejudice standard with ad

hoc exceptions whenever

they perceive an error to be

“clear” or departure from

the rules expedient. Such an

approach, not the rule of

restraint adopted here,

would have the unhappy

effect of prolonging the

pendency of federal habeas

applications as each new

exception is tested in the
7

courts of appeals.

Id. at 1853.

In Dretke, the Court, applying the

restraint that it cautioned for the lower

courts, declined to decide the issue that

had divided the courts of appeals –

whether to extend the actual innocence

exception to procedural default of

constitutional claims cha llengin g

noncapital sentencing error. Instead, it

avoided the issue by holding that “a

federal court faced with allegations of

actual innocence, whether of the sentence

or of the crime charged, must first address

all nondefaulted claims for comparable

relief and other grounds for cause to

excuse the procedural default.” Id. at

1852. We see no ground for avoidance

that was available to the District Court in

this case.3 It therefore met head on, and

rejected, Hubbard’s allegation of actual

innocence as a vehicle to open the gateway

 

3 The Appellate Division of the

New Jersey Superior Court stated that in

addition to Hubbard’s PCR claims being

procedurally barred, they provided no

basis for relief. Hubbard’s counsel urges

us to consider this ruling to be an

“alternative ruling” that we can review

despite the procedural default ruling. 

Appellant’s Br. at 15 n.11. At oral

argument, Hubbard’s counsel argued that

the District Court in this case failed first

to consider alternative grounds for relief

urged by the respondent, grounds that

might obviate any need to reach the

actual innocence question, citing Dretke,

124 S. Ct. at 1849. 

There are several reasons the state

court’s “alternative” ruling does not

obviate the need to reach the actual

innocence question. First, a state

procedural bar functions as an adequate

and independent state ground which

precludes federal review. Harris v. Reed,

489 U.S. 255, 264 n.10 (1989) (“a state

court need not fear reaching the merits of

a federal claim in an alternative holding,”

as “[b]y its very definition, the adequate

and independent state ground doctrine

requires the federal court to honor a state

holding that is a sufficient basis for the

state court’s judgment, even when the

state court also relies on federal law.”). 

Second, in Dretke the alternative habeas

claim the Supreme Court referred to was

an ineffective assistance of counsel claim

that had not been procedurally barred.

Should the petitioner in Dretke have

prevailed on this habeas claim, the actual

innocence question regarding the

procedurally defaulted claims could have

been avoided. In the instant case, all

habeas claims on appeal have been

procedurally defaulted. Third, Hubbard

acknowledges that “the issue of

procedural default, vel non, lies outside

the scope of the certificate of

appealability issued here.” Appellant’s

Br. at 15 n.11. For these reasons, we

decline to view the state court’s comment

regarding the merits as a basis on which

we can avoid the actual innocence

question.
8

to review of his procedurally defaulted

claims. We conclude that we are required

to do the same.4

III.

A petitioner who is asserting his

“actual innocence of the underlying crime

. . . must show ‘it is more likely than not

that no reasonable juror would have

convicted him in light of the new

evidence’ presented in his habeas

petition.” Calderon v. Thompson, 523

U.S. 538, 559 (1998) (quoting Schlup, 513

U.S. at 327). In Schlup, the Supreme

Court stated that claims of actual

innocence are rarely successful because

the necessary evidence is unavailable in

the vast majority of cases. 513 U.S. at

324. The Court explained that petitioner

must support his allegations of

constitutional error with

new reliable evidence –

whether it be exculpatory

s cientific evidence ,

trustworthy eyewitness

accounts, or critical physical

evidence – that was not

presented at trial.

Id. We must therefore consider both

whether Hubbard has presented “new

reliable evidence . . . not presented at

trial,” and, if so, whether it is more likely

than not that no reasonable juror would

have convicted him in light of the new

evidence.

The only evidence that Hubbard

asserts is “new” is what he terms as “his

own sworn testimony.” Appellant’s Br. at

18. Hubbard did include in his Bill of

Alibi Particulars, which he filed as a

matter of record before indictment, a

statement that places him too far from the

city where the crime was committed to

have participated in it. However, Hubbard

did not give this testimony during the trial

even though he was available to do so.

Counsel does not suggest that this piece of

evidence was excluded from the record

before the jury that convicted Hubbard. A

defendant’s own late-proffered testimony

is not “new” because it was available at

trial. Hubbard merely chose not to present

it to the jury. That choice does not open

the gateway.

In Glass v. Vaughn, 65 F.3d 13 (3d

Cir. 1995), petitioner, who was convicted

of first degree murder notwithstanding his

alibi that he was not even at the scene

when the killing occurred, sought to

overcome his procedural default of his

post traumatic stress disorder by claiming

actual innocence. Citing Schlup, we

rejected the actual innocence claim,

concluding that petitioner had not shown

that it is more likely than not that no

rational juror would have voted to convict

him in light of the evidence that he went to

the murder scene armed and had earlier

behaved violently to the victim.

 

4 We exercise plenary review over

the District Court’s legal conclusion and

review its findings of fact for clear error. 

Cristin, 281 F.3d at 409.
9

Hubbard’s proffered testimony fails

to change or clarify the facts presented at

trial. At trial the strongest evidence against

Hubbard was the testimony of Monroe and

Truluck, his accomplices who were there

when O’Neal was shot, and the evidence

of Hammon, albeit not specific as to

Hubbard’s identity. Mr. Wilson,

Hubbard’s uncle, testified as a State

witness that Hubbard called him three

weeks after the incident to tell him he

“was involved in a murder trial that he

didn’t commit.” Trial Tr. at 83 (Apr. 28,

1982). Hubbard’s trial counsel informed

the trial court that he would not call “Mr.

Wilson as a witness to support

[Hubbard’s] alibi defense.” Supp. App. at

11.

Hubbard called no witnesses.

Hubbard’s defense was presented

primarily by his trial counsel’s summation

to the jury, which stated, “Our whole

position throughout this case is we weren’t

there, weren’t there when it happened so

as a result we can’t be guilty.” Trial Tr. at

134 (Apr. 29, 1982). He referred to

several other pieces of evidence from

which the jury could have inferred that

Hubbard was not at the scene of the crime,

such as Hubbard’s denial of the indictment

and any involvement in the crime, the

height difference between Hubbard (who

is 5’9”) and the perpetrator who Hammon

testified was 6’ or 6’2”, the lack of

fingerprints, and the unexamined handprint

on the storm door of O’Neal’s house. In a

sworn statement supporting his habeas

petition, Hubbard essentially alleges the

same facts, raising questions such as

“[W]hat part I took in this crime? Was I at

the scene, around the corner? Was I in

another city?” App.II at 9. As this

information is not new, it cannot qualify as

the kind of new evidence contemplated by

the Supreme Court, such as “exculpatory

scientific evidence,trustworthy eyewitness

accounts, or critical physical evidence.”

Schlup, 513 U.S. at 324.

Hubbard’s counsel attempts to

show Hubbard’s claim of actual innocence

is reliable because “[a]part from the

testimony of Monroe and Truluck –

rejected by the jury – there is no evidence

of his guilt of the murder charge. Given

the absence of any evidence in support of

his guilt under a felony-murder theory, the

record is barren of any inconsistency with

the actual innocence claim that he now

timely puts forward.” Appellant’s Br. at

18. We find this argument unpersuasive.

There is no basis for Hubbard’s

statement that the jury rejected the

testimony of Monroe and Truluck.

Although the jury acquitted Hubbard of the

weapons charge – testified to by Monroe

and Truluck – it convicted him on the

robbery and murder charges, which were

also testified to by Monroe and Truluck.

To the extent that the jury conviction

suggests anything, it suggests that it

believed part and disbelieved part of their

testimony. However, it is wholly

inappropriate for this court to glean from

the bare fact of a partial conviction that

certain witnesses’ testimony is not to be

believed. Further, the lack of forensic

evidence linking Hubbard to the crime
10

does not bolster the credibility of

Hubbard’s claim of innocence because it

was this same record that the jury

reviewed en route to convicting him.

The “new” evidence Hubbard puts

forth in alleging actual innocence is

nothing more than a repackaging of the

record as presented at trial. Therefore he

cannot logically meet the more likely than

not “that no rational juror would have

voted to convict” standard. See Glass, 65

F.3d at 17. To allow Hubbard’s own

testimony that he proffers (supported by no

new evidence) to open the gateway to

federal review of claims that have been

procedurally defaulted under state law

would set the bar for “actual innocence”

claimants so low that virtually every such

claimant would pass through it. This

would stand in stark contrast to the caveat

of the Supreme Court to exercise restraint

and require a “strong showing of actual

innocence,” and its observation that

“[g]iven the rarity of such evidence, in

virtually every case, the allegation of

actual innocence has been summarily

rejected.” Calderon, 523 U.S. at 558-59

(internal quotation marks and citation

omitted). We thus conclude that

Hubbard’s allegation of actual innocence

is insufficient to allow review of his

defaulted claims.

Having so decided, we agree with

the District Court’s January 31, 2000

opinion that “[n]ot having shown cause for

his procedural default below or actual

innocence of the crimes for which he was

convicted, [the procedurally defaulted

claims] of petitioner’s habeas corpus

petition are not cognizable in this court.”

App.I at 11.5

 

5

Some of the language in the

District Court’s June 14, 2002 opinion

regarding Hubbard’s motion for

reconsideration is troubling. The Court

stated:

Petitioner challenges this

Court’s statement that he

did not raise actual

innocence as an issue in his

petition, but offers no

evidence that he did raise

such an issue without

procedural default, and

also offers no evidence that

he is actually innocent for

the charges he is presently

incarcerated for. Mr.

Hubbard’s petition was

denied on [some of his

claims] due to procedural

default, so even if he had

demonstrated some issue of

actual innocence here, it

would not have changed

this Court’s earlier denial

of his application.

App.I at 26. This seems to be a clear

misapprehension of the law, although

during oral argument counsel for the

state urged this court to view it as a

“poor choice of words.” If Hubbard had

demonstrated some “issue of actual

innocence,” the District Court would
11

CONCLUSION

For the reasons set forth above, we

will affirm the decision of the District

Court that it was foreclosed from

reviewing the procedurally defaulted

claims on the ground that the allegation of

actual innocence is insufficiently strong to

overcome the “State’s interests in actual

finality . . . .” Calderon, 523 U.S. at 557.

 

have been required to consider

Hubbard’s habeas application differently. 

However, this statement does not detract

from the District Court’s denial of the

habeas petition on the ground that there

was no “coherent argument as to his

actual innocence.” App.I at 11. Further,

the District Court gave no indication in

its opinion denying habeas that it

misapprehended the “actual innocence”

law, and in fact the Court discussed the

gateway correctly at some length. App.I

at 8-11.