                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2005

Minett v. Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3456




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Recommended Citation
"Minett v. Hendricks" (2005). 2005 Decisions. Paper 973.
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                                                              NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No: 03-3456


                                   JAMES MINETT,

                                                 Appellant,

                                            v.

                          ROY L. HENDRICKS, Administrator
                               New Jersey State Prison;
                            ATTORNEY GENERAL OF
                                   NEW JERSEY

                                 ___________________


                    On Appeal from the United States District Court
                              for the District of New Jersey
                             District Court No. 01-cv-03548
                    District Judge: The Honorable William H. Walls
                                ____________________

                                Argued January 11, 2005

   Before: ROTH and CHERTOFF,* Circuit Judges, and SHAPIRO,** District Judge.




   *
     This case was submitted to the panel of judges Roth, Chertoff, and Shapiro.** Judge
Chertoff resigned after submission, but before the filing of the opinion. The decision is
filed by a quorum of the panel. 28 U.S.C. § 46(d).
   **
    Honorable Norma L. Shapiro, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
Jean D. Barrett, Esq. (Argued)
David A. Ruhnke, Esq.
RUHNKE & BARRETT
47 Park Street
Montclair, NJ 07042
      Counsel for Appellant

Peter C. Harvey, Esq.
Attorney General of New Jersey
Kristen M. Harberg (Argued)
Deputy Attorney General
Division of Criminal Justice
Appellate Bureau
25 Market Street
P.O. Box 086
Trenton, NJ 08625
       Counsel for Appellee

                                 ____________________

                                         OPINION


SHAPIRO, District Judge.

       Appellant James Minett (“Minett”) appeals from the district court denial of his

petition for writ of habeas corpus under 28 U.S.C. § 2254.

I. FACTS AND PROCEDURAL HISTORY

       Minett was convicted in New Jersey state court of murder-for-hire and conspiracy

to commit murder. At trial, a witness for the prosecution made an unsolicited statement

that Minett had spent time in prison for a gun conviction. The trial judge struck the

testimony, gave limiting instructions to the jury, and denied Minett’s motions for a

mistrial. Minett, appealing his conviction in state court, argued that limiting instructions

                                              2
could not cure the prejudice from the impermissible testimony. Minett’s state court

appeals failed, and he filed a petition under 28 U.S.C. § 2254 in federal district court.

Minett’s sole claim is that the trial court violated his right to a fair trial under the Due

Process Clause of the Fourteenth Amendment. The district court denied Minett’s petition

because he failed to exhaust his claim in state court. At issue is whether the district court

erred in finding failure to exhaust, and if so, whether Minett’s claim has merit.

       Minett’s conviction arose out of the murder of Holly Jo Desch in New Jersey, on

February 11, 1995. Ms. Desch was shot at close range in the back of the head. At the

time, Minett was in the hospital. Charles Ward confessed to the shooting and testified

that Minett hired him to kill Ms. Desch for $10,000. Ward pleaded guilty to aggravated

manslaughter and unlawful possession of a weapon, and was sentenced to 35 years with

eligibility for parole in 17½ years.

       The prosecutor argued Minett had been having a seven-year affair with Ms. Desch

of which Minett’s wife was aware. Confrontations between the two women became

violent at times. Joseph Leathers, an acquaintance, testified Minett told him about his

problems with Ms. Desch and asked him numerous times to find someone to kill her.

Ward also testified Minett repeatedly asked him to find someone to kill Ms. Desch. Ward

testified that he eventually agreed to commit the murder himself, and that Minett asked

him to make the shooting look like an attempted robbery at the laundromat where Ms.

Desch worked. According to Ward, Minett supplied him with the gun and bullets. After



                                               3
the murder, one of Minett’s friends warned him the police were looking for him; he fled

to Florida, where he lived under a false name until he was arrested in December, 1995.

       Minett’s defense was that Ward killed Ms. Desch in a robbery attempt, and the

police, knowing of Minett’s troubles with Desch, suggested the murder-for-hire theory to

Ward during their interrogation of him. The police never located the gun. The

prosecution presented no physical evidence connecting Minett to the crime. The

prosecution’s case depended heavily on the testimony of Ward and Leathers. Ward’s

story contained inconsistencies, including his statements about when he obtained the gun

from Minett. Leathers claimed at trial that he was unaware of an application for

immunity on his behalf.

       During the prosecution’s direct examination of Leathers about Minett’s troubles

with Ms. Desch, Leathers made an inadmissible statement that Minett had served time for

a firearms conviction:

       Q: Did he ever talk to you about the kind of relationship that he had?

       A: Well, she created problems for him.

       Q: Did he tell you about any more problems, besides of course the
       motorcycle accident?

       A: Well, I know he had -- I know from experience that he went to – he had,
       he served time for a gun.

Supp. App. at 2,055. The trial judge immediately stated, “That comment is totally struck.

Jury is to disregard same totally. Next.” Id.


                                                4
       Minett’s counsel told the judge he intended to move for a mistrial. The judge gave

a limiting instruction to the jury:

       We have heard from Mr. Leathers certain testimony that the defendant may
       have had some contact with criminal system [sic] before this case. Even if
       true, that is not competent evidence in this room about this case. The issue
       before you is the conducted [sic] of this gentleman on these facts before you
       in this room. Nothing else.

       That issue was, that statement by this gentleman was struck by me. Now, to
       be struck from the record means the following: No one expects you to erase
       it from your memory. But you must remember not to use the struck piece of
       evidence to decide the case in any way. Anything less would mean you
       would not be doing your job pursuant to your oath.

Id. at 2,097.

       Minett did not object to the instruction, and the cross-examination resumed. In

moving later for a mistrial, he argued jurors would be unable to ignore the inadmissible

statement, to his irreparable prejudice. The prosecutor responded that she did not

intentionally elicit the statement from Leathers, but tried to stop him from making it; she

claimed a limiting instruction with voir dire would be sufficient.

       The judge denied the motion for a mistrial because the jurors appeared to

acknowledge and understand his limiting instruction:

       These people have been with us for about two weeks. They have been very
       attentive, and personally, I upon telling them the second time they could not
       use a piece of information, they were looking at me like they understood
       what was going on here in terms of that position.

Id. at 2,211. The defense, fearing it would highlight the statement and prejudice Minett

further, declined to request a voir dire. Instead, Minett asked the judge for a “very, very

                                             5
strong general instruction about the significance of striking testimony.” Id. at 2,221. The

judge found Leathers’s statement was not intentionally elicited by the prosecutor, but was

the result of Leathers’s “lack of smarts.” He again stated the jury seemed responsive to

his instructions:

       [T]hey understood me quite clearly on both occasions. They have had good
       eye contact with me the entire time. They had good eye contact yesterday.
       No question about that in my mind.

Id. at 2,222.

       In charging the jury, the judge issued another limiting instruction:

       No one expects you to erase from your memory a statement that I struck
       from the record. That is not possible. But you must remember that you
       cannot use that piece of information to decide this case in any way or to
       discuss it at all in that room.

Id. at 2,369.

       The jury convicted Minett, but unanimously declined to impose the death penalty.

Minett was sentenced to life in prison with a thirty-year period of parole ineligibility, and

a consecutive five-year sentence for unlawful possession of a handgun with a two-and-

one-half-year period of parole ineligibility.

       Minett moved for a new trial based on the incurability of prejudice from Leathers’s

statement. The motion cited the Due Process Clause of the Fourteenth Amendment, and

a footnote cited Bruton v. United States, 391 U.S. 123 (1968) 1 to argue that limiting

   1
     In Bruton, the Supreme Court held that a trial court’s limiting instruction cannot cure
violation of a defendant’s Sixth Amendment right to confrontation when a non-testifying
co-defendant’s confession implicates the defendant.

                                                6
instructions are not always effective.

       The trial court denied the motion. The judge found the jury did not react to

Leathers’s statement:

       I will assume that they heard it because I heard it, and you heard it, and the
       State heard it. They heard it. As they heard it, though, I didn’t see any
       reaction by anybody up there, truthfully. Now, this is a jury that has reacted
       on other people. When Mrs. Minett testified, there was [sic] a lot of nods, a
       lot of knowing looks towards each other. I didn’t see any of that thing
       when this statement occurred.

       This was a very short statement by a man – the State is right in that the man
       had a southern drawl and was not overly loud, but that doesn’t mean they
       didn’t hear. There were no nods by the jury, no gasps. None of those things
       you can say they were astounded by what they heard. You don’t know what
       they thought. No one can tell you that.

Supp. App. at 2,431-32. The judge repeated that the jury understood and followed his

limiting instructions. He also stated the admissible portions of Leathers’s testimony were

likely more damaging to Minett than one inadmissible statement.

       Minett appealed his convictions to the Appellate Division of the New Jersey

Superior Court. His appeal was based in part on the inadmissibility of the Leathers

statement under state rules of evidence and State v. Brunson, 625 A.2d 1085 (N.J. 1993).

In the conclusion to his brief, Minett invoked his fair trial rights under the Due Process

Clause of the Fourteenth Amendment. He cited Bruton twice to support his claim that

limiting instructions are not always effective. The appellate court, relying exclusively on

state law principles and cases, denied Minett’s appeal. See State v. Minett, No. A-6554-

97T1 (N.J. Super. Ct. App. Div. Jan. 28, 2000).

                                              7
       Minett petitioned for certification to the New Jersey Supreme Court. Again, his

petition was based primarily on state law and rules of evidence, but he invoked the Due

Process Clause of the Fourteenth Amendment, and cited Bruton. The New Jersey

Supreme Court denied review. See State v. Minett, 753 A.2d 1153 (N.J. 2000).

       Minett filed a petition for writ of habeas corpus in federal court. He claims the

trial court violated his fair trial rights under the Due Process Clause of the Fourteenth

Amendment by denying his motion for a mistrial. The district court held Minett failed to

exhaust his state court remedies because he did not present any federal constitutional legal

theory or analysis to the highest state court. The district court also held Minett failed to

present a substantively meritorious claim. The district court denied the habeas petition,

and declined to issue a certificate of appealability. See Minett v. Hendricks, No. 01-CV-

3548 (D.N.J. July 25, 2003).

       This court granted Minett’s motion for a certificate of appealability. The appeal is

limited to two issues: 1) Did Minett exhaust his claim in state court by briefly citing the

Constitution and Bruton? 2) Did the failure of the state court to grant Minett’s motion

for mistrial deprive Minett of the right to a fair trial under the Due Process Clause of the

Fourteenth Amendment?

II. JURISDICTION AND STANDARD OF REVIEW

       The district court had jurisdiction under 28 U.S.C. § 2254, and this court has

jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the district court did not hold an



                                              8
evidentiary hearing or engage in independent fact-finding, but dismissed Minett’s petition

based solely on a question of law, the standard of review is plenary. Scarbrough v.

Johnson, 300 F.3d 302, 305 (3d Cir. 2002), cert. denied, 537 U.S. 1052 (2002). A federal

court must presume that state court findings of fact are correct, unless they are not fairly

supported by the record. Id.

       The standard of review for a petition for writ of habeas corpus arising out of a state

court proceeding is mandated by The Antiterrorism and Effective Death Penalty Act, 28

U.S.C. § 2254(d) (“AEDPA”) and Williams v. Taylor, 529 U.S. 362 (2000). A petitioner

must establish that the state court proceeding: (1) resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision that

was based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceeding. 28 U.S.C. § 2254(d).

III. DISCUSSION

       Minett contends his brief citations to the Due Process Clause and Bruton at trial,

on appeal, and in his petition for certification were sufficient to exhaust the fair trial claim

in state court. The state contends the recitation of the Due Process Clause and “rote

incantation” of “constitutional buzzwords”, without additional constitutional analysis,

were insufficient to alert the state courts to his federal claim.

       The claim must be “fairly presented” to the state courts “by invoking one complete



                                               9
round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999); Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). A claim

is “fairly presented” when there is:

       (a) reliance on pertinent federal cases employing constitutional analysis, (b)
       reliance on state cases employing constitutional analysis in like fact
       situations, (c) assertion of the claim in terms so particular as to call to mind
       a specific right protected by the Constitution, and (d) allegation of a pattern
       of facts that is well within the mainstream of constitutional litigation.

 McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); Evans v. Court of Common

Pleas, 959 F.2d 1227, 1232 (3d Cir. 1992).

       In most of the cases from the Supreme Court and the Court of Appeals for the

Third Circuit cited by the state, the defendant failed to invoke any constitutional provision

or case law whatsoever. For example, in Baldwin v. Reese, 541 U.S. 27 (2004), defendant

raised an ineffective assistance of appellant counsel claim, but failed to identify it as a

federal claim and did not cite any federal case law. Similarly, the defendant in

McCandless made no reference to the federal constitution or case law with regard to the

claims the court found exhausted. McCandless, 172 F.3d at 262.

       It is not sufficient simply to invoke “due process” or “fair trial” rights in the state

court. See Keller v. Larkins, 251 F.3d 408, 414-415 (3d Cir. 1999). But Minett

explicitly invoked the Due Process Clause of the Fourteenth Amendment, and relied on

one Supreme Court case by analogy. Minett also presented the factual underpinnings of

his federal claim, and we conclude that, while his presentation barely passes muster, he did



                                               10
exhaust his claim in state court.

       Moving then to the merits of Minett’s petition, he contends the trial court’s denial of

his motion for mistrial violated his right to a fair trial under the Due Process Clause of the

Fourteenth Amendment. Because of the prejudicial nature of Leathers’ “other crimes”

testimony, weaknesses in the prosecution’s case, such as the lack of physical evidence

tying Minett to the crime, and the lack of credibility of prosecution’s witnesses, he claims

the jury would not have convicted him without the “other crimes” testimony, and the

judge’s limiting instructions could not cure the harm.

       Minett cites no Supreme Court cases on point. He argues by analogy to Bruton,

where the Court held that a trial court’s limiting instruction could not cure the violation of

a defendant’s Sixth Amendment right to confrontation when a non-testifying co-

defendant’s confession implicated the defendant. The Bruton comments on limits to

curative instructions do not apply here because Leathers’ “other crimes” testimony did not

directly implicate Minett in Desch’s murder, and Leathers was available for cross-

examination.

       Minett also cites a footnote in Greer v. Miller, 483 U.S. 756 (1987):

       We normally presume that a jury will follow an instruction to disregard
       inadmissible evidence inadvertently presented to it, unless there is an
       "overwhelming probability" that the jury will be unable to follow the court's
       instructions, and a strong likelihood that the effect of the evidence would be
       "devastating" to the defendant.

Id. at 766, n.8 (citations omitted). In Greer, the defendant in a murder trial took the



                                               11
stand, and on cross-examination the prosecutor asked the defendant about his postarrest

silence. Id. at 759. Counsel for the defendant objected immediately and the court

sustained the objection. Id. The defendant later moved for a mistrial, but the court

denied the motion and gave two curative instructions instead. Id. The Supreme Court

held the denial of the motion did not violate the defendant’s due process rights. Id. at

766. “The sequence of events in this case--a single question, an immediate objection, and

two curative instructions--clearly indicates that the prosecutor's improper question did not

violate Miller's due process rights.” Id.

       Minett ignores that the Court in Greer found no due process violation. He also

does not show there is an “overwhelming probability” the jury was unable to follow the

trial court’s instructions, or a “strong likelihood” that the evidence was “devastating” to

his case.

       Minett also relies on Moore v. Morton, 255 F.3d 95 (3d Cir. 2001) (granting

defendant new trial where prosecutorial misconduct rendered first trial unfair). While he

suggests the prosecutor in this case may have intentionally elicited “other crimes”

testimony, the trial court found the testimony inadvertent. Also, the prejudice from

Leathers’ testimony does not rise to that suffered by the defendant in Moore.

       The closest case on point cited by Minett is McKinney v. Rees, 993 F.2d 1378 (9 th

Cir. 1993). In McKinney, a pre-AEDPA trial, irrelevant “other acts” evidence was

erroneously admitted. Here, the trial court immediately struck Leathers’ statement and



                                             12
issued curative instructions. In McKinney, the remaining evidence against the defendant

was weak. Id. at 1385. Here, aside from the inadmissible statement, the jury heard

substantial testimony from both Leathers and Ward directly inculpating Minett. Neither

Moore nor McKinney is “clearly established federal law determined by the Supreme

Court,” required for relief under AEDPA.

       Minett cites no Supreme Court case clearly establishing the admission of “other

crimes” evidence constitutes a violation of federal fair trial rights. To the contrary, the

most relevant Supreme Court cases suggest the contrary. See, e.g., Estelle v. McGuire,

502 U.S. 62 (1991) (allowing evidence of prior injuries in a trial for infant murder, and

refusing habeas relief for a deficient limiting instruction); Greer v. Miller, supra (no due

process violation for prosecutor’s question about defendant’s postarrest silence after

objection was sustained and limiting instructions given); Spencer v. Texas, 385 U.S. 554

(1967) (rejecting a due process challenge to a state rule admitting evidence of prior

similar crimes when the judge gives a limiting instruction).

       Minett does not argue there was an unreasonable determination of the facts; he

cannot show a violation of the federal Constitution under the AEDPA standard of review.

IV. CONCLUSION

       Minett exhausted his state remedies, but his habeas petition is lacking in merit.

For reasons other than those relied on by the district court, we affirm the denial of

Minett’s petition for writ of habeas corpus.



                                               13
