Wheeler v. Nieves

762 F. Supp. 617

Carthel WHEELER, Plaintiff, v. Amalio NIEVES, Jr. and Ronald Humphrey, Defendants.

Civ. A. No. 88-3852.

United States District Court, D. New Jersey.

April 9, 1991.

Carthel Wheeler, pro se.

Glenn R. Jones, Office of the Atty. Gen., Trenton, N.J., for defendant Amalio Nieves, Jr.

OPINION

LECHNER, District Judge.

This is an action brought pro se by Southern State Correctional Facility inmate Carthel Wheeler ("Wheeler") against Amalio Nieves, Jr. ("Nieves") and Ronald Humphrey ("Humphrey"), his arresting officers (collectively, the "Defendants"), arising out of events leading up to his arrest and occurring at trial. While Wheeler does not state the basis for jurisdiction, it appears the claims are brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983.¹ Jurisdiction appears to be appropriate pursuant to 28 U.S.C. § 1331.

Nieves moves to dismiss the complaint on the ground that 28 U.S.C. § 1257(3) deprives this court of jurisdiction over the action. In addition, Nieves moves to dismiss the complaint under principles of res judicata and collateral estoppel.² For the reasons which follow, the motion is granted. In addition, the complaint against Humphrey is dismissed sua sponte.

Facts³

The complaint of Wheeler appears to be based on alleged constitutional violations arising out of both the conduct of Nieves and Humphrey leading up to Wheeler's arrest and the testimony of Nieves at Wheeler's trial.

Wheeler alleges he was convicted by a jury on 1 October 1986 of one count of conspiracy, two counts of possession of "CDS" and "two counts of CDS," and "was sentenced to 12 years with a minimum term of 5 years." Complaint at ¶ 26. His complaint states the convictions are "under appeal awaiting to be heard in Superior Court of New Jersey, Appellate Division, docket number A-3361-86-T4." Id. at ¶ 26.⁴

Wheeler alleges that at his trial on 30 September 1986, Nieves testified that Wheeler and "John Doe," apparently an unindicted co-conspirator, conspired on 11 March 1986 to sell Nieves $20 of white powdered cocaine. Id. at ¶¶ 3-4. Wheeler contends Nieves testified: he met Wheeler at 9:00 p.m. at the J.T. Bar on Summer Street in Paterson, New Jersey; he left the J.T. Bar at 9:15 p.m. and met Wheeler and John Doe at a corner approximately fifty feet away from the J.T. Bar, id. at ¶¶ 4-6; John Doe handed him four vials of cocaine as Wheeler said to John Doe, "Go ahead, give it to him," id. at ¶ 7; he then handed John Doe a twenty dollar bill, id. at ¶ 6; and after purchasing the cocaine from John Doe and Wheeler, he contacted Humphrey, his back-up, by radio and gave him a description of John Doe and Wheeler. Id. at ¶ 10. Wheeler alleges: "Humphrey and a companion then got out of their vehicle and made Wheeler drop his pants to his knees and searched him on the `public street' with another individual named Lewis Goodwin." Id. at ¶ 13. Wheeler alleges "there were sic no arrest nor was Wheeler taken to police headquarters for questioning or photograph." Id. at ¶ 14. Wheeler further alleges:

Subsequently, Defendant Humphrey went to Paterson Police Headquarters ... and pulled a photo of Wheeler out of files from June of 1983, pertaining to Wheeler's prior conviction for narcotics violation.... Humphrey handed this photo over to Detective Roy Daniels, who witnessed the photo being put into (1) five photo line-up for Defendant Nieves to review, and made out this report on April 9, 1986, almost a month after the alleged crime.

Id. at ¶¶ 16-18. Wheeler then alleges: "This photo line-up was ruled overly suggestive in Superior Court because of Wheeler being the only black male with two (2) punch holes (taken out of file), clean shaven, and under 66 inches tall." Id. at ¶ 19.

Wheeler alleges Nieves later recanted his testimony, instead testifying that he did not meet Wheeler at the J.T. Bar and that the crime occurred at 10:25 p.m., the hour written on the physical evidence used at trial, not 9:15 p.m. Id. at ¶ 9.

Wheeler alleges Nieves also testified at trial that he bought one ten dollar vial from Wheeler on 19 March 1986. Nieves allegedly testified that after this purchase he radioed a description of Wheeler to Humphrey and gave him a description of Wheeler's clothing which was identical to the description he gave Humphrey following the purchase of 11 March 1986. Id. at ¶¶ 21-22. Wheeler alleges: "Defendant Humphrey made a `pass by' the area ... to verify that Wheeler was the suspect in this alleged crime without going through any positive identification procedure." Id. at ¶ 23.⁵

Wheeler filed the instant complaint on 6 September 1988. Without specifying whether he refers to the conduct of the Defendants resulting in his arrest or to the testimony of Nieves at trial, Wheeler asserts the "action of the Defendants described above denied Wheeler Due Process of law in violation of the Fourth Fifth, Sixth, and Fourteen Amendment sic...." Id. at ¶ 28. In addition, he contends he was "deprived of his right to a fair and impartial trial ... when Nieves knowingly, willingly, and purposely ... falsified police reports, ... gave perjured testimonies sic under oath, ... and used false evidence." Id. at ¶ 29. Wheeler contends Humphrey violated his constitutional rights by conducting a "pass by" prior to the arrest of 19 March 1986 without first engaging in "positive identification procedures." Id. at ¶ 30. Wheeler next alleges: "Wheeler was semi-strip searched on the public street without an arrest, afterwards, a overly suggestive photo from Wheeler's prior conviction for narcotics drug was then put into a line-up and used as evidence violating search and seizure, double jeopardy standards...." Id. at ¶ 31. Next, Wheeler alleges the crimes for which he was convicted were fabricated in violation of his constitutional rights. Id. at ¶ 32. In addition, Wheeler contends: "He had no co-defendant in the alleged crime of conspiracy on March 11, 1986, moreover; all through trial there was no one but a John Doe who can be anyone, violating Wheeler's right of access to the courts...." Id. at ¶ 33. Finally, Wheeler contends: "All narcotics drug allegedly purchased from the accused or whoever, being marked with the name of John Doe's sic ... was a violation of Wheeler's Fourth Amendment of the ... Constitution and Due Process...." Id. at ¶ 34.

On 8 December 1989, approximately fifteen months after Wheeler filed the complaint, the appellate division of the New Jersey superior court decided his appeal from the conviction. Wheeler raised on appeal the following issues:

I. THE APPELLANT'S FIFTH AMENDMENT CONSTITUTIONAL RIGHT NOT TO TESTIFY WAS VIOLATED WHEN THE STATE IMPERMISSABLY SIC ELICITED TESTIMONY REGARDING HIS PRIOR INVOLVEMENT WITH LAW ENFORCEMENT.

II. THE STATE IMPERMISSABLY SIC INTRODUCED OTHER CRIMES EVIDENCE TO ESTABLISH A GENERAL DISPOSITION FOR WRONGDOING IN VIOLATION OF NEW JERSEY EVIDENCE RULE 55.

III. THE TRIAL COURT ERRED IN PERMITTING AN IN COURT IDENTIFICATION OF APPELLANT AS THERE DID NOT EXIST SUFFICIENT INDICIA OF RELIABILITY OUTWEIGHING THE CORRUPTING EFFECT OF THE SUGGESTIVE PHOTO ARRAY.

IV. APPELLANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHICH AFFECTED THE OUTCOME OF THE TRIAL.

V. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

App.Div. Opinion at 3. In addition, Wheeler raised the following issues in his supplemental pro se brief:

I. NO RATIONAL TRIER OF FACT COULD HAVE FOUND THE APPELLANT GUILTY OF CONSPIRACY BEYOND A REASONABLE DOUBT ON THE EVIDENCE PRESENTED BY THE STATE.

II. THE APPELLANT'S SENTENCE OF 12 YEARS WITH A 5 YEAR PAROLE DISQUALIFIER IS IN VIOLATION OF THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION.

App.Div. Opinion at 4.

Wheeler asserted before the appellate division that testimony by Nieves and Humphrey violated his Fifth Amendment right to be free from self-incrimination because it could be inferred from such testimony that Wheeler had previously engaged in crime. App.Div. Opinion at 4. Wheeler also argued that such testimony constituted the impermissible admission of evidence of other crimes. App.Div. Opinion at 4-6. Wheeler additionally argued his in-court identification was tainted by the earlier identification based on an unduly suggestive photograph array. App.Div. Opinion at 6-7.

The appellate division determined Wheeler's Fifth Amendment right against self-incrimination was not violated by the testimony of Nieves and Humphrey. App.Div. Opinion at 4. Additionally, it concluded any inference from their testimony that Wheeler had previously been engaged in crime was not unduly prejudicial and did not constitute the improper admission of evidence of prior crimes. App.Div. Opinion at 5-6. The appellate division also concluded the in-court identification of Wheeler was not tainted by the earlier identification based on an unduly suggestive photograph array.

In deciding the propriety of the in-court identification, the appellate division summarized the trial court proceedings on the issue of the suggestiveness of the photograph array as follows:

Prior to commencement of Wheeler's trial a Wade hearing was held in order to determine whether the photo array used at the police station was unduly suggestive because the defendant's photo had two holes punched in the top, whereas the other four photos used did not. The trial court found that the photo array utilized by the State was unnecessarily suggestive, but that there was sic sufficient indicia of reliability to outweigh the corrupting effect of any suggestive identification. Therefore, the arresting officer was permitted to make an in-court identification of Wheeler.

App.Div. Opinion at 3. The appellate division affirmed the decision of the trial court permitting the in-court identification of Wheeler because it agreed that the in-court identification contained sufficient indicia of reliability to outweigh the prejudicial effect of the suggestive photograph...