Hubbard v. Pinchak

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

8-5-2004

Hubbard v. Pinchak
Precedential or Non-Precedential: Precedential

Docket No. 00-5150

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 PRECEDENTIAL

UNITED STATES COURT OF Mary Gibbons (Argued)
APPEALS FOR THE THIRD CIRCUIT Toms River, New Jersey 08757

Attorney for Appellant

No. 00-5150 Peter C. Harvey
Attorney General of New Jersey
Trenton, New Jersey 08625

FRANK HUBBARD, Linda K. Danielson (Argued)
Appellant Deputy Attorney General
Of Counsel and on Brief
v. Division of Criminal Justice
Appellate Bureau
STEVEN PINCHAK; THE ATTORNEY Trenton, New Jersey 08625
GENERAL OF THE STATE OF NEW
JERSEY; PETER VERNIERO Attorneys for Appellees

OPINION OF THE COURT
On Appeal from the United States
District Court for the District of New
Jersey SLOVITER, Circuit Judge.
(D.C. Civil No. 97-cv-03717)
District Judge: Hon. Jerome B. Simandle Petitioner Frank M. Hubbard seeks
a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He procedurally defaulted
Argued May 5, 2004 his claims in the state courts. He seeks to
overcome the procedural default by
Before: SLOVITER and FUENTES, asserting his “actual innocence,” Bousley
Circuit Judges, and POLLAK, District v. United States, 523 U.S. 614, 623
Judge* (1998); Schlup v. Delo, 513 U.S. 298, 327
(1995), a claim that the District Court
(Filed: August 5, 2004) rejected. We must therefore examine the
scope and contours of the claim of actual
innocence as a gateway to consideration of
*
Hon. Louis H. Pollak, Senior the merits of petitioner’s habeas claim
Judge, United States District Court for notwithstanding the procedural default.
the Eastern District of Pennsylvania,
sitting by designation.
 FACTS girlfriend, testified that she, Monroe,
Hubbard, and Banks drove to O’Neal’s
On June 22, 1981 in Camden, New place of residence intending to rob him,
Jersey, David O’Neal 1 was killed by a that the men went into the residence while
gunshot wound to the face. Thereafter, the she remained in the vehicle and did not
State of New Jersey indicted Hubbard on witness anything related to their entry, but
six felony counts, including murder, that she saw Hubbard and Banks run back
robbery, conspiracy to commit robbery, to the vehicle, and that Hubbard instructed
and firearms violations. Hubbard pled not someone to drive and wrapped the gun in
guilty to all counts. Also charged as a towel. Truluck’s account was consistent
defendants were John Monroe, who with Monroe’s subsequent testimony.
entered a guilty plea in exchange for a
thirty-year sentence, and Stanley Banks, Gary Hammon, the lone eyewitness
who was a fugitive at the time of trial. who was not involved in the incident, also
testified. Hammon lived “[r]ight across
Monroe testified at trial to the from” O’Neal and although he did not see
details of the crimes pursuant to a plea the shooting itself, he testified that there
agreement with the prosecutor. He stated were three perpetrators involved, all of
that he, Hubbard, and Banks met at his whom he saw conversing with each other,
residence where they discussed robbing and two of whom he saw knock on
O’Neal, that he assumed Hubbard had a O’Neal’s door. Hammon testified that all
gun because he observed a bulge in the men were black, and that there was a
Hubbard’s front, that Hubbard showed him shorter man who was “[f]ive foot
a gold watch to sell to O’Neal, and that, at something” and a taller man who was “six
Hubbard’s direction, Banks drove to foot something” or “six foot two.” Trial
O’Neal’s. When they arrived, Hubbard Tr. at 14-15 (Apr. 22, 1982). Hammon
handed O’Neal the gold watch, pulled his testified that when O’Neal opened the
revolver and, when O’Neal reached for his door, one of the two men shot him. All
own gun, Hubbard shot O’Neal in his face. three men fled without entering O’Neal’s
Hubbard and Banks returned to their residence. He did not get a good look at
vehicle and Monroe ran home. any of their faces.

Lore lie Truluck , Mon roe ’s The jury found Hubbard guilty of
felony murder and robbery, and not guilty
of the handgun possession charges. On
1 July 6, 1982, the state court sentenced
The victim’s name appears
Hubbard to life imprisonment with a 25-
throughout the record as either “O’Neal”
year parole ineligibility on the felony
or “O’Neil.” We will conform to the
murder charge, and a 20-year concurrent
District Court’s spelling and use
term on the robbery count.
“O’Neal” herein.

2
 There was no testimony linking any (1) that the indictment
gun, putatively the murder weapon, to against him was based on
Hubbard and no forensic evidence linking the perjurious testimony of
him to the victim or the scene of the crime. the arresting detectiv e
Hubbard had filed a Bill of Alibi before the grand jury; (2)
Particulars before the grand jury charged that his sentence does not
him in which he stated he was in Atlantic comply with New Jersey
City, New Jersey on the night of the crime, sentencing criteria; (3) that
which took place in Camden, New Jersey. the trial court improperly
deprived him of his right to
PROCEDURAL HISTORY cross-examine one of the
state’s witnesses; (4) that
This matter has traveled up and the police violated his Fifth
down the state courts of New Jersey, and it Amendment right to counsel
is unnecessary to recount the full details by ignoring his request for
here. We will limit the facts to the an attorney during custodial
proceedings necessary to decide this interrogation; (5) that the
appeal from the District Court’s order trial court gave a prejudicial
denying Hubbard’s petition for a writ of supplemental jury
habeas corpus. Hubbard filed two separate instruction on the law of
petitions for post-conviction relief (PCR) accomplices; (6) that the
in the state courts – the first in August trial court impro perly
1988, and the second in May 1994. Both admitted certain
were dismissed as untimely, and therefore photographs into evidence;
were procedurally barred by New Jersey and (7) that his trial counsel
state law. Although the Appellate provided ineff ective
Division of the New Jersey Superior Court assistance.
agreed that the claims raised in Hubbard’s
second PCR petition were time barred, it App.I at 3.
nevertheless stated that it “carefully
reviewed each of the seven [claims] and The District Court dismissed two of
[is] satisfied that there is no basis to grant the grounds raised by Hubbard for
[Hubbard] relief.” App.II at 209. substantive reasons and they are not at
issue in this appeal. The District Court
On July 28, 1997, Hubbard filed a denied the requested writ of habeas corpus
pro se petition for habeas corpus relief in on the five other claims because of
the District Court, raising seven claims Hubbard’s procedural default, stating,
that he had set forth in his second PCR “Petitioner has not argued that he is
petition. They are: innocent of the crime for which the jury
convicted him,” App.I at 10, and

3
concluded, “Not having shown cause for App.I at 26 (emphasis added).
his procedural default below or actual We issued a certificate of
innocence of the crimes for which he was appealability on the issue “whether the
convicted, Grounds One, Three, Four, Six Distr ic t C ou rt p ro pe rly r ejecte d
and Seven of petitioner’s habeas corpus Appellant’s attempt to overcome the
petition are not cognizable in this court.” procedural default of claims #1, #3, #4, #6
App.I at 11. and #7 by asserting his ‘actual
innocence.’” Appellant’s Br. at 2. We
Hubbard then filed a pro se motion have jurisdiction to review the denial of
of reconsideration of the District Court’s the habeas writ under 28 U.S.C. §§ 1291 &
denial of habeas relief. In response to this 2253.
motion, the District Court held that
although the motion for reconsideration DISCUSSION
was timely filed,
I.
[Petitioner] does not raise
any factual or legal point The State contends that Hubbard’s
overlooked by this Court. allegation of actual innocence is not
Petitioner challenges this properly before this court because it
Court’s statement that he appeared “[f]or the first time in his motion
d id n o t r a i se a c t u al for reconsideration of the [D]istrict
innocence as an issue in his [C]ourt’s opinion.” Appellee’s Br. at 15.2
petition, but offers no
evidence that he did raise Hubbard’s motion for
such an issue without reconsideration as well as his habeas
procedural default, and also petition were filed pro se. We have
offers no evidence that he is previously stated that a petitioner’s
actually innocent for the
charges he is presently
incarcerated for. Mr.
Hubbard’s petition was 2
At oral argument the State
denied on [the five relevant
conceded, “The whole issue of timing is
grounds] due to procedural
an academic issue because in the first
default, so even if he had
instance, there is no viable claim of
demonstrated some issue of
actual innocence,” and that if such a
actual innocence here, it
viable claim were made even in a motion
would not have changed this
for reconsideration, in the interest of
Court’s earlier denial of his
justice the District Court would have had
application.
to address it. Tape of Oral Argument
(May 5, 2004).

4
 failure to specifically F.3d at 108, this language in the pro se
articulate his claim as one of petition and traverse was sufficient to
“actual innocence” should preserve Hubbard’s actual innocence
not preclude review of the claim. In fact, he pled not guilty, and he
merits of his claim. [The filed a Bill of Alibi Particulars placing him
petitioner] clearly argued in Atlantic City at the moment of the
that the government could crime, which occurred in Camden. We
not satisfy the factual therefore reject the State’s argument that
prerequisites of a . . . Hubbard’s claim of actual innocence is not
conviction. When properly properly before us.
viewed through the more
forgiving lens used to II.
construe pro se habeas
petitions, we conclude that As the Supreme Court reiterated
t h e claim of “actual this past term, a federal court will
innocence” was properly ordinarily not entertain a procedurally
before the District Court. defaulted constitutional claim in a petition
for habeas corpus “[o]ut of respect for
United States v. Garth, 188 F.3d 99, 108 fin ality, comity, and the orderly
(3d Cir. 1999). administration of justice.” Dretke v.
Haley, 124 S. Ct. 1847, 1849 (2004). This
This case presents a similar is a reflection of the rule that “federal
situation. Among the grounds Hubbard courts will not disturb state court
raised in his habeas petition were judgments based on adequate and
“ineffective trial counsel” who “did independent state law pro cedura l
nothing in [his] defense” and that the grounds.” Id. at 1852; see Wainwright v.
“whole trial was a mockery.” App.II at 5. Sykes, 433 U.S. 72, 81 (1977). The
In response to the State’s claim of the principal exception to this general rule
procedural bars, Hubbard stated that precluding federal review of habeas claims
“[f]ederal review is necessary to prevent a that have been procedurally defaulted is
fundamental miscarriage of justice,” and for petitioners who can show “cause and
that there was “a reasonable probability” prejudice” for the procedural default or
that but for counsel’s unprofessional errors that a “miscarriage of justice” will occur
“the results of the proceedings would have absent review. Cristin v. Brennan, 281
been different.” Supp. App. at 125, 127. F.3d 404, 414 (3d Cir. 2002). An
allegation of “actual innocence,” if
When viewed through a “more credible, is one such “miscarriage of
forgiving lens” that does not require justice” that enables courts to hear the
petitioners to “specifically articulate” merits of the habeas claims.
claims of actual innocence, Garth, 188

5
 The petitioner in Schlup v. Delo, F.3d at 412, a “fundamental miscarriage of
513 U.S. 298 (1995), the leading case on justice” will remove the bar on claims that
the “actual innocence” doctrine, had made have been procedurally defaulted, and
both an assertion of constitutional error at actual innocence will show such a
trial and a claim of innocence. The fundamental miscarriage of justice.
Supreme Court stated that because of the
assertion of constitutional error, his Because the cause and prejudice
conviction was not “entitled to the same exception to the procedural bar for
degree of respect as one. . . that is the defaulted claims is itself based on
product of an error free trial.” Id. at 316. equitable considerations, the Supreme
The Court continued, Court has made clear that the actual
innocence exception to the unreviewability
Without any new evidence of procedurally defaulted claims should be
of innocence, even the applied only in the rarest of cases. See
existence of a concededly Dretke, 124 S. Ct. at 1852. As it explained
meritorious constitutional in Dretke:
violation is not in itself
sufficient to establish a [I]t is precisely because the
miscarriage of justice that various exceptions to the
would allow a habeas court procedural default doctrine
to reach the merits of a are judge-made rules that
barred claim. However, if a courts as their stewards
petitioner . . . presents must exercise restraint,
evidence of innocence so adding to or expanding them
strong that a court cannot only when necessary. To
have confidence in the hold otherwise would be to
outcome of the trial unless license district courts to
the court is also satisfied riddle the cause and
that the trial was free of prejudice standard with ad
nonharmless constitutional hoc exceptions whenever
error, the petitioner should they perceive an error to be
be allowed to pass through “clear” or departure from
the gateway and argue the the rules expedient. Such an
merits of his underlying approach, not the rule of
claims. restraint adopted here,
would have the unhappy
Id. Hubbard relies on this precedent as the effect of prolonging the
basis for us to “pass through the gateway” pendency of federal habeas
to the merits of his habeas claims. As we applications as each new
explained in our decision in Cristin, 281 exception is tested in the

6
 courts of appeals. rejected, Hubbard’s allegation of actual
innocence as a vehicle to open the gateway
Id. at 1853.

In Dretke, the Court, applying the
There are several reasons the state
restraint that it cautioned for the lower
court’s “alternative” ruling does not
courts, declined to decide the issue that
obviate the need to reach the actual
had divided the courts of appeals –
innocence question. First, a state
whether to extend the actual innocence
procedural bar functions as an adequate
exception to procedural default of
and independent state ground which
cons titut i o n a l claim s cha llengin g
precludes federal review. Harris v. Reed,
noncapital sentencing error. Instead, it
489 U.S. 255, 264 n.10 (1989) (“a state
avoided the issue by holding that “a
court need not fear reaching the merits of
federal court faced with allegations of
a federal claim in an alternative holding,”
actual innocence, whether of the sentence
as “[b]y its very definition, the adequate
or of the crime charged, must first address
and independent state ground doctrine
all nondefaulted claims for comparable
requires the federal court to honor a state
relief and other grounds for cause to
holding that is a sufficient basis for the
excuse the procedural default.” Id. at
state court’s judgment, even when the
1852. We see no ground for avoidance
state court also relies on federal law.”).
that was available to the District Court in
Second, in Dretke the alternative habeas
this case.3 It therefore met head on, and
claim the Supreme Court referred to was
an ineffective assistance of counsel claim
that had not been procedurally barred.
3
The Appellate Division of the Should the petitioner in Dretke have
New Jersey Superior Court stated that in prevailed on this habeas claim, the actual
addition to Hubbard’s PCR claims being innocence question regarding the
procedurally barred, they provided no procedurally defaulted claims could have
basis for relief. Hubbard’s counsel urges been avoided. In the instant case, all
us to consider this ruling to be an habeas claims on appeal have been
“alternative ruling” that we can review procedurally defaulted. Third, Hubbard
despite the procedural default ruling. acknowledges that “the issue of
Appellant’s Br. at 15 n.11. At oral procedural default, vel non, lies outside
argument, Hubbard’s counsel argued that the scope of the certificate of
the District Court in this case failed first appealability issued here.” Appellant’s
to consider alternative grounds for relief Br. at 15 n.11. For these reasons, we
urged by the respondent, grounds that decline to view the state court’s comment
might obviate any need to reach the regarding the merits as a basis on which
actual innocence question, citing Dretke, we can avoid the actual innocence
124 S. Ct. at 1849. question.

7
to review of his procedurally defaulted trial,” and, if so, whether it is more likely
claims. We conclude that we are required than not that no reasonable juror would
to do the same.4 have convicted him in light of the new
evidence.
III.
The only evidence that Hubbard
A petitioner who is asserting his asserts is “new” is what he terms as “his
“actual innocence of the underlying crime own sworn testimony.” Appellant’s Br. at
. . . must show ‘it is more likely than not 18. Hubbard did include in his Bill of
that no reasonable juror would have Alibi Particulars, which he filed as a
convicted him in light of the new matter of record before indictment, a
evidence’ presented in his habeas statement that places him too far from the
petition.” Calderon v. Thompson, 523 city where the crime was committed to
U.S. 538, 559 (1998) (quoting Schlup, 513 have participated in it. However, Hubbard
U.S. at 327). In Schlup, the Supreme did not give this testimony during the trial
Court stated that claims of actual even though he was available to do so.
innocence are rarely successful because Counsel does not suggest that this piece of
the necessary evidence is unavailable in evidence was excluded from the record
the vast majority of cases. 513 U.S. at before the jury that convicted Hubbard. A
324. The Court explained that petitioner defendant’s own late-proffered testimony
must support his allegations of is not “new” because it was available at
constitutional error with trial. Hubbard merely chose not to present
it to the jury. That choice does not open
new reliable evidence – the gateway.
whether it be exculpatory
scientific evidence, In Glass v. Vaughn, 65 F.3d 13 (3d
t r u s tw orthy eyew itness Cir. 1995), petitioner, who was convicted
accounts, or critical physical of first degree murder notwithstanding his
evidence – that was not alibi that he was not even at the scene
presented at trial. when the killing occurred, sought to
overcome his procedural default of his
Id. We must therefore consider both post traumatic stress disorder by claiming
whether Hubbard has presented “new actual innocence. Citing Schlup, we
reliable evidence . . . not presented at rejected the actual innocence claim,
concluding that petitioner had not shown
that it is more likely than not that no
4 rational juror would have voted to convict
We exercise plenary review over
him in light of the evidence that he went to
the District Court’s legal conclusion and
the murder scene armed and had earlier
review its findings of fact for clear error.
behaved violently to the victim.
Cristin, 281 F.3d at 409.

8
 Hubbard’s proffered testimony fails “[W]hat part I took in this crime? Was I at
to change or clarify the facts presented at the scene, around the corner? Was I in
trial. At trial the strongest evidence against another city?” App.II at 9. As this
Hubbard was the testimony of Monroe and information is not new, it cannot qualify as
Truluck, his accomplices who were there the kind of new evidence contemplated by
when O’Neal was shot, and the evidence the Supreme Court, such as “exculpatory
of Hammon, albeit not specific as to scientific evidence, trustworthy eyewitness
Hubbard’s identity. Mr. Wilson, accounts, or critical physical evidence.”
Hubbard’s uncle, testified as a State Schlup, 513 U.S. at 324.
witness that Hubbard called him three
weeks after the incident to tell him he Hubbard’s counsel attempts to
“was involved in a murder trial that he show Hubbard’s claim of actual innocence
didn’t commit.” Trial Tr. at 83 (Apr. 28, is reliable because “[a]part from the
1982). Hubbard’s trial counsel informed testimony of Monroe and Truluck –
the trial court that he would not call “Mr. rejected by the jury – there is no evidence
Wilson as a witness to support of his guilt of the murder charge. Given
[Hubbard’s] alibi defense.” Supp. App. at the absence of any evidence in support of
11. his guilt under a felony-murder theory, the
record is barren of any inconsistency with
Hubbard called no witnesses. the actual innocence claim that he now
Hubbard’s defense wa s prese nted timely puts forward.” Appellant’s Br. at
primarily by his trial counsel’s summation 18. We find this argument unpersuasive.
to the jury, which stated, “Our whole
position throughout this case is we weren’t There is no basis for Hubbard’s
there, weren’t there when it happened so statement that the jury rejected the
as a result we can’t be guilty.” Trial Tr. at testimony of Monroe and Truluck.
134 (Apr. 29, 1982). He referred to Although the jury acquitted Hubbard of the
several other pieces of evidence from weapons charge – testified to by Monroe
which the jury could have inferred that and Truluck – it convicted him on the
Hubbard was not at the scene of the crime, robbery and murder charges, which were
such as Hubbard’s denial of the indictment also testified to by Monroe and Truluck.
and any involvement in the crime, the To the extent that the jury conviction
height difference between Hubbard (who suggests anything, it suggests that it
is 5’9”) and the perpetrator who Hammon believed part and disbelieved part of their
testified was 6’ or 6’2”, the lack of testimony. However, it is wholly
fingerprints, and the unexamined handprint inappropriate for this court to glean from
on the storm door of O’Neal’s house. In a the bare fact of a partial conviction that
sworn statement supporting his habeas certain witnesses’ testimony is not to be
petition, Hubbard essentially alleges the believed. Further, the lack of forensic
same facts, raising questions such as evidence linking Hubbard to the crime

9
does not bolster the credibility of claims] of petitioner’s habeas corpus
Hubbard’s claim of innocence because it petition are not cognizable in this court.”
was this same record that the jury App.I at 11.5
reviewed en route to convicting him.

The “new” evidence Hubbard puts 5
Some of the language in the
forth in alleging actual innocence is
District Court’s June 14, 2002 opinion
nothing more than a repackaging of the
regarding Hubbard’s motion for
record as presented at trial. Therefore he
reconsideration is troubling. The Court
cannot logically meet the more likely than
stated:
not “that no rational juror would have
voted to convict” standard. See Glass, 65
Petitioner challenges this
F.3d at 17. To allow Hubbard’s own
Court’s statement that he
testimony that he proffers (supported by no
did not raise actual
new evidence) to open the gateway to
innocence as an issue in his
federal review of claims that have been
petition, but offers no
procedurally defaulted under state law
evidence that he did raise
would set the bar for “actual innocence”
such an issue without
claimants so low that virtually every such
procedural default, and
claimant would pass through it. This
also offers no evidence that
would stand in stark contrast to the caveat
he is actually innocent for
of the Supreme Court to exercise restraint
the charges he is presently
and require a “strong showing of actual
incarcerated for. Mr.
innocence,” and its observation that
Hubbard’s petition was
“[g]iven the rarity of such evidence, in
denied on [some of his
virtually every case, the allegation of
claims] due to procedural
actual innocence has been summarily
default, so even if he had
rejected.” Calderon, 523 U.S. at 558-59
demonstrated some issue of
(internal quotation marks and citation
actual innocence here, it
omitted). We thus conclude that
would not have changed
Hubbard’s allegation of actual innocence
this Court’s earlier denial
is insufficient to allow review of his
of his application.
defaulted claims.
App.I at 26. This seems to be a clear
Having so decided, we agree with
misapprehension of the law, although
the District Court’s January 31, 2000
during oral argument counsel for the
opinion that “[n]ot having shown cause for
state urged this court to view it as a
his procedural default below or actual
“poor choice of words.” If Hubbard had
innocence of the crimes for which he was
demonstrated some “issue of actual
convicted, [the procedurally defaulted
innocence,” the District Court would

10
 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.

11