                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5389




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Recommended Citation
"Hernandez v. Hendricks" (2008). 2008 Decisions. Paper 1439.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1439


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                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 05-5389
                     ____________

                RAMON HERNANDEZ,

                              Appellant

                            v.

       ROY L. HENDRICKS, Superintendent,
            New Jersey State Prison;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY,

                              Appellees.

                     ____________

       On Appeal from United States District Court
              for the District of New Jersey
             District Court No.: 02-cv-02636
        District Judge: Honorable John C. Lifland
                      ____________

       Submitted Under Third Circuit LAR 34.1(a)
                    March 6, 2008

Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.

                 (Filed: March 17, 2008)
                      ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Ramon Hernandez appeals the District Court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. We granted a certificate of appealability to

consider whether the state trial court’s failure to convene a hearing regarding the

prosecutor’s allegedly improper use of peremptory challenges violated Hernandez’s rights

to equal protection and due process under the Fourteenth Amendment. The District Court

found that Hernandez’s request for a “Gilmore hearing” was a state law claim not subject

to federal habeas review. We also asked the parties to address whether Hernandez’s

claim was properly exhausted.

                                             I.

       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here. When considering habeas petitions,

federal district courts are confined to determining whether a conviction violated the

Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). Insofar as a petitioner challenges the correctness of

an application of state law without alleging a deprivation of any federal right, he may not

obtain habeas relief. Engle v. Isaac, 456 U.S. 107, 119 (1982). Conversely, dismissal of

state constitutional claims does not preclude federal habeas review of analogous federal

constitutional claims. Simmons v. Beyer, 44 F.3d 1160, 1166 (3d Cir. 1995).




                                             2
       Here, Hernandez articulated his claim almost entirely as one of state constitutional

law when he requested a Gilmore hearing and referenced the New Jersey Constitution.

Hernandez also set forth a federal constitutional claim when he argued in his petition for

writ of habeas corpus that “[t]he lower courts[sic] failure to grant a Gilmore hearing in

this matter violated petitioner’s right to due process and a fair trial as guaranteed by . . .

the Constitution of the United States 14th Amendment.” Likewise, in his supplemental

habeas petition, Hernandez noted that Batson v. Kentucky, 476 U.S. 79 (1986), holds that

the use of peremptory challenges to exclude jurors based on their race violates the Equal

Protection Clause of the Fourteenth Amendment. Hernandez claimed that “the trial judge

did not want to deal with this issue” and denied his request for a hearing “on an issue that

needed direct participation from the prosecutor to make a determination as to whether a

clear and concise reason existed for the peremptory challenges made.” Hernandez’s

reference to the Equal Protection Clause, coupled with his citation to Batson, is sufficient

to state a federal constitutional claim that is cognizable under the federal habeas statute.

See, e.g., Brinson v. Vaughn, 398 F.3d 225 (3d Cir. 2005).

                                               II.

       We turn to the question of exhaustion, which requires a habeas petitioner to “give

the state courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State's established appellate review process.” O'Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). In addition, federal constitutional claims must be



                                               3
“fairly presented” to the state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A

petitioner has “fairly presented” his claim if he presented the same factual and legal basis

for the claim to the state courts in such a way as to place them “on notice that a federal

claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).

After the District Court dismissed Hernandez’s petition, we explained that to exhaust his

claim a petitioner need only demonstrate: (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, or (d) an allegation of a pattern of

facts that is well within the mainstream of constitutional litigation. Nara v. Frank, 488

F.3d 187, 198 (3d Cir. 2007). Furthermore, a claim is exhausted as long as the state court

had the opportunity to address the federal claim, regardless of whether it addressed it on

the merits or dismissed it on procedural grounds. Bond v. Fulcomer, 864 F.2d 306, 309

(3d Cir. 1989).

       In his supplemental pro se brief before the New Jersey Appellate Division,

Hernandez claimed that the “defendant was hispanic, few hispanics were included in the

jury array, the prosecutor peremptorily challenged every hispanic juror except one; and

the defendant was tried by a jury of ten whites, one black, and one hispanic.” This

pattern, Hernandez asserted, “established a prime facie [sic] showing that the prosecutor

exercised his challenges because of group bias,” and required remand for a hearing “at



                                                4
which time the prosecutor should explain his reasons for peremptorily challenging all of

the hispanic jurors except one.” Although Hernandez relied heavily upon Gilmore, and

requested a “Gilmore hearing,” he also cited to Batson at two points in the brief.

       We find that Hernandez’s supplemental brief, although far from a model of clarity,

placed the New Jersey courts “on notice that a federal claim [was] being asserted.”

McCandless, 172 F.3d at 261. Most notably, the language of Hernandez’s argument

plainly brings to mind the burden-shifting framework of Batson, which requires the

defendant to first make out a prima facie case “by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose,” 476 U.S. at 93-94, after which

the “burden shifts to the State to explain adequately the racial exclusion” by offering

permissible race-neutral justifications for the strikes. Id. Moreover, the fact pattern

alleged is “well within the mainstream of constitutional litigation.” McCandless, 172

F.3d at 261. Hernandez’s description of the jury selection is apparently meant to raise a

Batson issue, and he cited Batson in his briefing. Under the McCandless factors, this was

sufficient to alert the New Jersey courts to Hernandez’s federal equal protection claim.

                                             III.

       For the foregoing reasons, we will vacate the District Court’s order dismissing

Hernandez’s petition and we will remand the case to permit the District Court to consider

whether Hernandez established a factual basis for his claim and whether he is entitled to

an evidentiary hearing.



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