Landano v. Rafferty , 897 F.2d 661 ( 1990 )

OPINION OF THE COURT

COWEN, Circuit Judge.

The various appellants-petitioners in this action, whom we will refer to collectively as “the State of New Jersey,” appeal an order of the district court conditionally granting the petition of Vincent James Landano (“Landano”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). The writ was issued incident to Landano’s successful motion under Fed.R.Civ.P. 60(b) for relief from an earlier judgment of the district court denying his petition. Landa-no’s 60(b) motion, which in effect renewed his initial petition and raised additional claims, was premised on alleged prosecuto-rial fraud. Because we find that Landano has not satisfied the exhaustion requirement of section 2254 with respect to certain additional claims he has raised in his 60(b) motion, we will reverse the district court’s order granting the conditional writ, and remand with directions to dismiss the petition and vacate all orders entered subsequent to the court’s initial order denying Landano’s petition.

I.

On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearney, New Jersey (“the Kearney robbery”).¹ During the robbery, one of the gunmen shot and killed a Newark police officer. A Hudson County grand jury indicted Landano and three other men, Allen Roller (“Roller”), Victor Forni (“Forni”) and Bruce Reen (“Reen”), for felony murder and other crimes stemming from the robbery. The trial of Forni and Reen was severed from that of Landano and Roller. However, prior to the commencement of the Landano and Roller trial, and pursuant to a plea agreement with the prosecutor, Roller pled non vult to the felony murder charge and testified against Landano.

Evidence at Landano’s trial showed that the Kearney robbery was the work of a motorcycle gang known as “The Breed.” According to the testimony of Breed members and affiliates, the gang frequently planned and executed armed robberies in the Staten Island area. The evidence also revealed that Roller, the president of The Breed’s Staten Island chapter, and Forni, who was not a Breed member but reputedly responsible for organizing most of The Breed’s criminal activities, conceived of the plan to rob the Hi-Way Check Cashing Service.

It was undisputed that Landano was neither a Breed member nor affiliate. However, Roller testified that Landano was specifically recruited for the Kearney job because he was a friend of Forni. Roller insisted at trial that although Forni had orchestrated the robbery, Forni did not participate in the actual execution of the crime.

According to the testimony at the trial, two men arrived at the Hi-Way Check Cashing Service in the early morning hours of August 13. One of the perpetrators entered the Service’s trailer/office, while the other remained outside. During the robbery, Officer John Snow pulled into the parking lot in his patrol car. The perpetrator who had remained outside walked up to the patrol car and shot Officer Snow at close range, killing him. The two perpetrators then sped off in a green Chevrolet.

Landano was linked to the crime through the testimony of several witnesses. Roller testified that he and Landano were the perpetrators and that he was the individual who had entered the trailer while Landano remained outside. Roller also told the court that Landano informed him later that he had to “ice” or “waste” the police officer.

Jacob Roth (“Roth”), the owner of Hi-Way Check Cashing Service, also identified Landano as a participant in the robbery, but Roth testified that Landano had been the individual who entered the trailer, not the one who remained outside. In addition, Roth was able to observe the license plate of the automobile used by the perpetrators.

Joseph Pascuiti (“Pascuiti”), an employee of an adjacent warehouse, testified that he observed from his workplace window a dark haired man approach Officer Snow’s patrol car. However, Pascuiti then turned away from the window. When he heard gunshots and again focused his attention on the parking lot, Pascuiti saw a green Chevrolet, driven by the same dark haired man who had approached the patrol car, pulling hurriedly out of the parking lot. Pascuiti was unable to identify the dark haired man as Landano.

In attempting to escape from the crime scene, the perpetrators came upon a blocked intersection. The efforts of the driver to maneuver through the traffic attracted the attention of Raymond Portas (“Portas”), a truckdriver sitting in the stalled traffic. Portas testified that he saw a green Chevrolet pull out of the line of traffic and proceed along adjacent railroad tracks. Portas’ description of the license plate number matched Roth’s. At trial, Portas was able to identify Landano as the driver of the car. Furthermore, Portas stated that he had also picked Landano’s photograph out of an array shown to him at a pre-trial identification session.

Thus, the evidence at Landano’s trial linking him to the crime included: Roller’s testimony naming Landano as his partner; Roth’s identification of Landano as the participant who entered the trailer; Pascuiti’s testimony that the killer of Officer Snow was the driver of the green Chevrolet; and Portas’ testimony that the driver of the green Chevrolet was Landano. After approximately two days of deliberations, the jury informed the court that it was unable to reach a unanimous verdict on any of the submitted counts. At that point, the court delivered a supplemental charge and ordered the jurors to continue their deliberations. One hour later the jury returned a verdict finding Landano guilty on all counts. On May 17, 1977, Landano was sentenced to life imprisonment on the felony murder count and a consecutive term of seven to fifteen years on the remaining counts.

Landano filed a Notice of Appeal on June 29, 1977. On September 26, 1978, Landano also filed a motion in the Superior Court of New Jersey, Appellate Division, seeking remand to the trial court for consideration of his motion for a new trial. The motion was based on three grounds: (1) Roller’s alleged prison recantation in which he allegedly told two other prisoners that he had committed the Kearney robbery with someone other than Landano; (2) newly discovered evidence allegedly linking Forni to a Jersey City robbery that Roller had admitted committing at Landano’s trial, but with someone other than Forni; (3) and a Brady ² claim alleging that the prosecutor had suppressed evidence possibly linking Roller, Forni and Reen to one or two Perth Amboy robberies occurring sometime prior to the Kearney holdup.

An order granting Landano’s motion was entered on October 17, 1978. Three days of evidentiary hearings were then held by the trial court, after which Landano’s motion was denied. The Appellate Division subsequently both denied Landano’s direct appeal and affirmed the trial court’s denial of his motion for a new trial. Landano’s petition for certification was denied by the New Jersey Supreme Court.

On March 31, 1982, Landano filed a petition for post-conviction relief. According to Landano, the issues raised in this petition were the following:

(1) Whether [the trial court’s] “Allen” charge³ required vacation of the conviction.

(2) Whether newly discovered evidence as to [the] coercion of ... Roth in obtaining identification testimony against Lan-dano required vacation of the conviction.

(3) Whether newly discovered evidence that the prosecutor had coached ... Por-tas in obtaining his photographic and in-court identification of ... Landano required vacation of the conviction.

(4) Whether newly discovered evidence that the State had concealed [Officer] Snow’s connection to ... Roller and that ... Roller had perjured himself at trial about such connection required vacation of the conviction.

(5) Whether the sheer accumulation of prosecutorial misconduct compels the overturning of ... Landano’s conviction ⁴

[(6)] Whether the State’s loss or destruction of two photographs of the display shown ... Portas in obtaining an identification of ... Landano required vacation of the conviction.

[(7)] Whether the State’s failure to sequester ... Portas so that he could not view the defendant as he was led into the trial court just prior to Portas’ in-court identification testimony unduly tainted Portas’ identification and otherwise deprived defendant of a fair trial.

App. at 484 (Landano’s Brief in Support of his appeal of the trial court’s denial of his petition for post-conviction relief). Issues (3), (6) and (7) arose out of Portas’ recantation of his trial testimony. As part of his recantation, Portas has stated under oath that when he was asked initially to identify the driver of the getaway car he selected someone other than Landano from the array and that only later, after the police had removed the selected photograph and told him to continue looking, at the array, did he tentatively identify Landano as resembling the driver. In addition, Portas has stated that he did not recognize Landano when Landano and his attorney walked past him in the courthouse hallway prior to Portas’ in-court identification until a police officer told him immediately after the encounter that one of the two men was “our man.”

The trial court conducted evidentiary hearings pursuant to this petition. Thereafter, the court issued a series of letter opinions, ultimately denying Landano’s requested relief. The court’s decision was based primarily on its finding that Portas’ recantation was incredible. On January 30, 1984, the Appellate Division denied Landa-no’s appeal, and on June 13, 1984, the Supreme Court of New Jersey denied certification. The issues raised by Landano in the Appellate Division and in his petition for certification to the New Jersey Supreme Court were substantially the same as those raised in the trial court.

On October 10, 1985, Landano filed a petition for a writ of habeas corpus in federal court.

As grounds for relief [Landano] allege[d]: (1) that his due process rights to a fair trial were infringed by the admission of ... Portas’ identification testimony; (2) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of codefendant ... Roller; (3) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of ... Roth ...; (4) [and] that the state court’s coercive charge to the jury violated [Landano’s] Sixth Amendment right to an impartial jury.

Landano v. Rafferty, 670 F.Supp. 570, 573 (D.N.J.1987), aff'd, 856 F.2d 569 (3d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989). These four claims had all been properly exhausted in the state proceedings initiated by Landano. After holding its own evidentiary hearing on issue (1), the district court found that Portas’ recantation was credible. However, the court recognized that it was bound by the prior credibility finding of the state trial court and, therefore, found no due process violation as a result of the admission of Portas’ identification. Moreover, the court found that although relevant impeachment evidence of both Roller and Roth had been suppressed by the State, such information was not material in light of Pascuiti’s trial testimony linking the killer of Officer Snow to the driver of the getaway car and Portas’ identification of Landano as that driver. Id. at 585-88.⁵ The district court reluctantly denied the petition. This Court affirmed, Landano v. Rafferty, 856 F.2d 569 (3d Cir.1988), and the United States Supreme Court denied certiorari. Landano v. Rafferty, — U.S. -, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989).

On June 7, 1989, Landano filed with the district court a motion to reopen the previous habeas proceeding, pursuant to Fed.R. Civ.P. 60(b), and an ex parte application for a temporary restraining order. The motion requested the court to vacate the prior judgment because of fraud on the part of the prosecution. Specifically, Landano alleged that state investigation reports, recently obtained by Landano’s own investigator, revealed that the prosecution had intentionally suppressed information that at least two witnesses had identified Forni as the driver of the getaway car. Landano sought relief in the form of an order to show cause why a writ of habeas corpus should not issue, and a temporary restraining order directing that the United States Marshal seize all files pertaining to the Kearney robbery maintained by the New Jersey Attorney General, the Hudson County Prosecutor, and several police departments.

The ex parte application for a temporary restraining order was granted by the district court on June 8, 1989, and Landano’s counsel thereafter reviewed all of the files, except for portions that the State of New Jersey claimed were protected by work product privilege or confidentiality. At a hearing on June 14, the State presented the district court with a list of items deemed privileged or confidential. After reviewing these documents in camera, the district court granted in part and denied in part the State’s claims.

On June 28, 1989, the district court filed an order to show cause why a writ of habeas corpus should not issue. After taking submissions from the parties and hearing oral argument, the district court, on July 27, 1989, vacated its earlier order denying Landano’s petition and issued a conditional writ of habeas corpus requiring that the State of New Jersey release Lan-dano unless a new trial is commenced within 90 days.⁶ The basis for the district court’s reversal of its previous decision was the discovery by Landano’s counsel of two allegedly suppressed and exculpatory documents in the State’s files.⁷ The first document was a handwritten sheet of paper labeled “ID on Landano” allegedly containing information that several witnesses were suggestively shown a single photograph of Landano but even so rejected it as being a likeness of one of the perpetrators. Significantly, one of the witnesses identified in the document is Pascuiti, a key witness for the State. The second document is a Kearney Police Continuation Report containing an apparent identification of Forni as the driver of the getaway ear by an eyewitness named “Joseph Pasa-pas.” ⁸

After finding that both of these documents had indeed been suppressed, the district court determined that the information contained in both of the documents was also material. Importantly, the court’s materiality analysis of the “ID on Landa-no” document required a simultaneous reevaluation of its earlier analysis of the suppression claims raised in Landano’s initial habeas corpus petition:

The court prefaces its discussion of the materiality of the [handwritten “ID on Landano” document] by noting that consideration of the case against Landano “as a whole” necessarily includes the court’s conclusions in Landano, 670 F.Supp. at 585, 588, regarding the suppression of evidence which could have impeached the testimony of Roller and Roth at trial.

The evidence at trial linking Landano to the crime consisted of the testimony of Portas ... and the testimony of Roller and Roth. In its prior opinion, the court held that the suppression of evidence which impeached the testimony of Roller and Roth was not material in light of the other evidence linking Landano to the murder. That “other evidence” is now called into question, and thus the court’s materiality determination regarding the suppression of impeachment evidence against Roller and Roth must also be reevaluated. Such impeachment evidence becomes material when considered in light of facts indicating that Pascuiti, the State’s only witness to the shooting, may have ruled out Landano as the murderer.

Landano v. Rafferty, 126 F.R.D. 627, 648-49 (D.N.J.1989). The court argued that had the defense been apprised of the “ID on Landano” document, they could have used it to argue to the jury that Pascuiti had already ruled out Landano as the killer of Officer Snow. If the jury accepted this argument, then the State’s case unravels:

In its prior opinion, this court noted that two witnesses testified that the killer of Officer Snow was also the driver of the getaway car. The prosecutor has already been found to have suppressed Brady material with respect to ... Roller, one of those two witnesses. The court could not find a Brady violation, however, because there was a second witness, Pascuiti, who testified that the killer and driver were one and the same, and a third witness, Portas, who had identified Landano as the driver. Now, the record supports an inference that the prosecutor suppressed Brady material with respect to Pascuiti’s negative identification of Landano which, in turn, calls into question the credibility of Portas’ identification.

Id. at 649.

The court gave a similar analysis for the “Joseph Pasapas” identification contained in the Kearney Police Continuation Report. If the person misnamed “Joseph Pasapas” is really Joseph Pascuiti, as the State contends, then had the defense known of this identification they could have rebutted Pas-cuiti’s redirect trial testimony to the effect that he had never selected a photograph of Forni as resembling the driver of the green Chevrolet. Alternatively, if “Joseph Pasa-pas” is actually Gus Lapas, the owner of a coffee truck usually parked in the area near the Hi-Way Check Cashing Service, as Landano suggests, then such testimony at trial would have directly rebutted Por-tas’ testimony that Landano was the driver of the getaway car. The district court concluded that under either theory there was a reasonable probability that had the information been turned over to the defense, the outcome of the trial would have been different. Id. at 653. After issuing its conditional writ, the district court entered an order on July 28 denying the State’s motion for both a stay of the conditional writ and for release of its files.

The State of New Jersey now appeals the district court's order granting the conditional writ. The appeal of the conditional writ (No. 89-5638) has been consolidated with the State’s petition for mandamus seeking an order that all documents seized pursuant to the district court’s temporary restraining order of June 8 be returned to the State (No. 89-5625), and its appeal of the district court’s denial of its claims of work product privilege and confidentiality (No. 89-5504).⁹ This Court has jurisdiction pursuant to 28. U.S.C. § 2253 (1982) and 28 U.S.C. § 1291 (1982).

II.

The first issue we confront in our consideration of the State’s appeal is that of exhaustion. Title 28 U.S.C. § 2254(c) (1982) requires a habeas petitioner to exhaust available state remedies before filing an action in federal court: “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” Moreover, this exhaustion requirement is applicable to new claims a habeas petitioner may raise in seeking relief from a final order under Fed.R.Civ.P. 60(b).¹⁰ Pitchess v. Davis, 421 U.S. 482, 489-90, 95 S.Ct. 1748, 1752-53, 44 L.Ed.2d 317 (1975).

This Court has recognized that the exhaustion requirement is not jurisdictional, but arises rather from interests of comity between the state and federal systems. See, e.g., Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989). Nevertheless, we have held that the requirement should be strictly adhered to because it expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions. See, e.g., United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 95 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978). Accord Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam). In addition, strict compliance with the exhaustion requirement properly acknowledges that state courts, no less than federal courts, are bound to safeguard the constitutional rights of state criminal defendants, Irvin v. Dowd, 359 U.S. 394, 404-05, 79 S.Ct. 825, 831-32, 3 L.Ed.2d 900 (1959); Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886), as well as increasing the likelihood that the factual allegations necessary for a resolution of the petitioner’s constitutional claim will have been fully developed in state court, making federal habeas review more expeditious. Rose, 455 U.S. at 519, 102 S.Ct. at 1203.

This Court has also noted that the habeas petitioner bears the burden of proving that he has exhausted available state remedies. Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir.1982) (per curiam). To demonstrate compliance, the petitioner must show that the claim he asserts in federal court has been “fairly presented” to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Ross v. Petsock, 868 F.2d 639, 641 (3d Cir.1989). To be “fairly presented,” the federal claim must be the substantial equivalent of that presented to the state courts. Picard, 404 U.S. at 278, 92 S.Ct. at 513; Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986).

This Court has interpreted substantial equivalence to mean that both the legal theory and the facts on which a federal claim rests must have been presented to the state courts. Ross, 868 F.2d at 641; Bond, 864 F.2d at 309; O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir.1987); Gibson, 805 F.2d at 138. Accord Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir.1989); Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th Cir.1988); Wise v. Warden, Maryland Penitentiary, 839 F.2d 1030, 1033 (4th Cir.1988); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir.1982), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984) (en banc) (“In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court.”). By requiring that the habeas petitioner provide the state courts with both the same legal theory and the same factual predicate underlying the constitutional argument, the federal court ensures that the same method of legal analysis that is used by the federal court in resolving the petitioner’s claim was also readily available to the state court when it adjudicated the claim. Santana, 685 F.2d at 74; Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (in banc) (citing Stanley v. Illinois, 405 U.S. 645, 658 n. 10, 92 S.Ct. 1208, 1216 n. 10, 31 L.Ed.2d 551 (1972) (dictum)). Cf. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (“28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with a ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his constitutional claim”) (quoting Picard, 404 U.S. at 276-77, 92 S.Ct. at 512-13). In addition, the habeas petitioner must exhaust his state remedies as to each of his federal claims. If a habeas corpus petition contains both exhausted and non-exhausted claims the petition must be dismissed. Rose, 455 U.S. at 510, 102 S.Ct. at 1199; Santana, 685 F.2d at 73.

After a complete review of the record before us, cf. Ross, 868 F.2d at 640, we find that Landano has not exhausted his state remedies as to the additional Brady claims he now has asserted in connection with his Rule 60(b) motion. Landano concedes that none of the suppression claims he previously raised in his initial habeas petition specifically included the information he now claims was suppressed, i.e., the information contained in the handwritten “ID on Landa-no” document and the Kearney Police Continuation Report.¹¹ Landano’s previous Brady claims were based on impeachment evidence that Roth was being investigated for “underworld” connections, impeachment evidence that Roller was involved in previous robberies with Forni, evidence that Portas selected a photograph of Forni when asked to identify the driver of the green Chevrolet, and evidence relating to the involvement of Officer Snow’s son in The Breed motorcycle gang.

However, Landano argues, and the district court found, that he has exhausted his present Brady claims in two ways: (1) by generally alleging throughout his state court proceedings that the State of New Jersey joined with the true perpetrators of the crime in suppressing inculpatory evidence of Forni and exculpatory evidence of Landano, and (2) by specifically alleging in his post-conviction brief that the State of New Jersey made no eyewitness record of identifications of Forni.

However, these arguments misconstrue the controlling principles developed by both the Supreme Court and this Court on the issue of exhaustion. With regard to Landano’s first argument, we believe that a general claim that the prosecutor has suppressed exculpatory information cannot satisfy the exhaustion requirement as to all subsequent Brady claims that a habeas petitioner may bring. As noted above, this Court has consistently held that in complying with the exhaustion requirement a ha-beas petitioner must not only provide the state courts with his legal theory as to why his constitutional rights have been violated, but also the factual predicate on which that legal theory rests. This requirement is especially appropriate in the context of an alleged Brady violation since the materiality of the suppressed information is determined by considering the strength of the state’s case as a whole. United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342 (1976). As is plainly evident from the district court’s own opinion in the instant case, in making such a determination the court must conduct a fact-sensitive examination of the precise nature of the suppressed information, along with a delicate judgment as to whether there is a reasonable probability that had the suppressed evidence been disclosed, the outcome of the trial would have been different. Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988) (citing United States v. Bagley, 473 U.S. 667, 672, 105 S.Ct. 3375, 3378, 87 L.Ed.2d 481 (1985)). If the specific nature of the Brady material underlying the petitioner’s claim is not revealed to the state court, as in the instant case, the state court is effectively foreclosed from fully engaging in this type of an analysis. Under such circumstances, the state court has clearly not had “a ‘fair opportunity’ to apply the controlling legal principles to the facts bearing upon [the petitioner’s] constitutional claim.” Anderson, 459 U.S. at 6, 103 S.Ct. at 277 (emphasis added). See also Daye, 696 F.2d at 191 (a habeas petitioner “must have set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim”).

Landano’s second argument is that his present Brady claims were exhausted when he alleged in his post-conviction brief, with appropriate citations to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, that:

—Eyewitnesses were pressured, cajoled, or led into identification of Mr. Landano. In some cases no record was made of eyewitness identification of Forni.

App. at 399. We believe, however, that this portion of Landano’s post-conviction brief can not suffice to exhaust his state remedies as to his present Brady claims for two compelling reasons. First, we reemphasize that for the exhaustion requirement to be satisfied the claim that is presented to the federal courts must have been fairly presented to the state courts. For purposes of the exhaustion requirement, a “claim is composed of fact and law, and both must be presented to the state court before a reasoned decision can be made.” O’Halloran, 835 F.2d at 510. The above-quoted portion of Landano’s trial court brief appeared in the “Preliminary Statement” of his post-conviction brief.¹² The factual predicates for these allegations correspond to legal issues raised later in the brief: eyewitness Roth was pressured by the State into identifying Landano by means of a state investigation into his “underworld” connections; eyewitness Portas was led and cajoled by the State into identifying Landano by the improper removal of photographs from the array he examined and by the parading of Landano in front of Portas prior to his in-court identification; and the State made no record of eyewitness Portas’ identification of Forni as the driver of the getaway car at his initial pre-trial identification session. These are clearly different factual predicates than the ones which comprise his present claims: a witness named “Joseph Pasapas” identified Forni as being the driver of the Kearney getaway car, and Pascui-ti, as well as several other witnesses, were improperly shown a single photograph of Landano and rejected it. Since the factual predicates of Landano’s various suppression allegations are substantially different, it is wrong to rigidly label them all as the same claim in order to satisfy the exhaustion requirement. See Humphrey v. Cady, 405 U.S. 504, 516 n. 18, 92 S.Ct. 1048, 1056 n. 18, 31 L.Ed.2d 394 (1972) (“The question ... is whether any of petitioner’s claims is so clearly distinct from the claims he has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim”). Cf. Gibson, 805 F.2d at 135 (no exhaustion when the state ineffectiveness of counsel claim was based on counsel instructing the petitioner to plead guilty to offenses which he claimed not to have committed, the petitioner not receiving the sentence which his counsel led him to believe he would receive if he pled guilty and the counsel’s inadequate explanation of the plea bargain, while the federal ineffectiveness of counsel claim was based on counsel’s failure to protect the petitioner’s juvenile status); Zicarelli, 543 F.2d at 472-73 (no exhaustion when the state court sixth amendment claim was based on the failure of the petitioner’s jury to be drawn from the county where the crime had been committed, while the federal court sixth amendment claim included allegations that the procedures employed by the state in assembling the jury violated the cross-section concept of the sixth amendment); Keller v. Petsock, 853 F.2d 1122, 1126-27 (3d Cir.1988) (the exhaustion requirement is not satisfied when petitioner’s claim in federal court asserted that the trial court actually told the jury it would not entertain questions during their deliberations, while the state court claim simply asserted that at no time was the jury informed that they could direct questions to the court).¹³ But cf. United States ex rel. Johnson v. Johnson, 531 F.2d 169, 172 (3d Cir.), cert. denied 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976) (federal court ineffectiveness of counsel claim based on counsel’s advice to petitioner not to testify and variance between opening remarks and trial strategy was exhausted even though state claim was primarily based on counsel’s failure to adequately investigate alibi witness).¹⁴ Any other result would deprive the New Jersey courts of the initial opportunity to pass upon and correct, if necessary, the alleged violations of Landano’s constitutional rights occurring in their system.¹⁵ Cf. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408-09, 30 L.Ed.2d 418 (1971); Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950) (overruled in other respects by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)).

There is an additional reason for rejecting Landano’s second exhaustion argument. A careful reading of Landano’s present Brady claims shows that neither involve the cajoling or pressuring of eyewitnesses by the State, nor do they involve the failure of the State of New Jersey to make a record of eyewitness identifications of Forni. Rather, the handwritten “ID on Landano” document contains alleged information that witnesses were shown a photograph of Landano, not Forni, and rejected it. Such misconduct by the police is certainly not alleged by Landano to have involved cajoling or pressure. On the other hand, the Kearney Police Continuation Report does contain an apparent identification of Forni by a witness, but importantly a record was made of this identification, i.e., this information is memorialized in the Continuation Report itself.¹⁶ Therefore, the suppression theory embodied in the preliminary statement relied upon by Landano does not even cover the information that Landano now alleges was suppressed and thus the New Jersey courts could not have been expected, sua sponte, to have considered these claims. Gibson, 805 F.2d at 139.

The Supreme Court case on which Landa-no relies for his exhaustion argument, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), is inapposite. In Vasquez, the habeas petitioner presented, at every level in the state courts, an equal protection challenge to the discriminatory selection of his grand jury. Id. at 256, 106 S.Ct. at 619. After the petition asserting the same equal protection claim had been filed in federal court, the district court requested, under 28 U.S.C. § 2254 Rule 7(b), that the petitioner submit three additional items of information: census data from the year 1900, three affidavits from black residents of the county indicating that they were available to serve, and a statistical analysis of the cumulative census data from 1900 to I960.¹⁷

The State argued that this additional information rendered the equal protection claim non-exhausted. The Supreme Court disagreed, holding that the affidavits were not new evidence because the state courts had already found as a fact that no black had ever served on the grand jury and that this finding was binding on the federal courts. As for the statistical analysis, the Court noted that this information “added nothing to the case that this Court has not considered intrinsic to the consideration of any grand jury discrimination claim.” Id. at 259, 106 S.Ct. at 621. The Court thus rejected the state’s non-exhaustion argument since “the supplemental evidence presented by respondent did not fundamentally alter the legal claim already considered by the state courts.... ” Id. at 260, 106 S.Ct. at 622.

Landano attempts to argue, analogously, that he presented his Brady argument to the state courts and now in his Rule 60(b) motion has simply provided additional evidence to the federal courts of the extent of the State’s suppression of exculpatory evidence. Since the additional evidence does not fundamentally alter his state court claim — rather it supports his repeated contention that Forni was the one who committed the Kearney robbery and murder — Lan-dano urges us to apply Vasquez to this case.

However, we believe that Landano’s argument is flawed because he simply attempts to assume as a premise what is at issue in this appeal. In Vasquez, the petitioner’s claim had already been clearly exhausted in state proceedings. After exhausting his remedies, the petitioner merely provided the federal court with additional evidence supporting his claim. The only question in Vasquez was whether the additional evidence fundamentally altered the exhausted claim. The question that is central to our analysis, and which was never at issue in Vasquez, is quite different: whether the substance of the habeas petitioner’s federal claim has been fairly presented to the state courts. When seen in this posture, Vasquez is not relevant to the instant case and does not dictate a different result. As we have established above, Landano has not carried his burden of showing that he has fairly presented the substance of his present Brady claims to the state courts, therefore, the principles involving what quantum of additional evidence can support an exhausted claim without running afoul of § 2254(b) are irrelevant to our analysis.¹⁸

Interestingly, both Landano and the district court seem to have anticipated the conclusion we have now reached and thus have provided, collectively, two alternative grounds for reaching the merits of Landa-no’s claims. Both of these arguments are essentially to the effect that because of the particular circumstances of this case, the exhaustion requirement should be excused. We find neither argument compelling.

Landano first urges us to find that the State of New Jersey has constructively waived its non-exhaustion argument because of its systemic, bad faith suppression of exculpatory evidence. Unfortunately, he provides us with no Supreme Court, nor even any lower court, decision that has fashioned such an exception to the exhaustion requirement. We can find no hint in any Supreme Court opinion that such an exception would be recognized or countenanced. In fact, just the opposite has been implied in recent opinions. See, e.g., Duckworth, 454 U.S. at 3, 102 S.Ct. at 19 (“An exception [to the exhaustion requirement] is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.”) (emphasis added).

Furthermore, we believe that such an exception would be inconsistent with the important concern with comity that informs our view of the exhaustion rule. As this Court has noted:

Exhaustion is a rule of comity. “Comity,” in this context, is that measure of deference and consideration that the federal judiciary must afford to the co-equal judicial systems of the various states. Exhaustion, then, serves an interest not of state prosecutors but of state courts.

Trantino, 563 F.2d at 96 (emphasis in the original). Accord Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (“The exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings”); Naranjo v. Ricketts, 696 F.2d 83 (10th Cir.1982). Therefore, an exception “punishing” the prosecutor for misconduct by withholding the exhaustion defense would clearly not serve the interest of comity as we have viewed that concept in the habeas context.¹⁹ Thus, we decline Landano’s suggestion to carve out an exception to the exhaustion rule for some constitutional errors, i.e., Brady violations, but not others.²⁰

Landano also argues that should we find that his Brady claims have not been exhausted, then we should accept the district court’s alternative holding that the exhaustion requirement should be excused because of exceptional circumstances of peculiar urgency. See Landano, 126 F.R.D. at 644 n. 6 (citing Rose, 455 U.S. at 515, 102 S.Ct. at 1201); Landano’s Brief at 40 n. 9. Landano argues, as did the district court, that the pattern of prosecutorial suppression of material, exculpatory evidence in this case amounted to exceptional circumstances. Id.

In Rose, the Supreme Court quoted a passage from an earlier Court decision, Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944), to the effect that: “it is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only ‘in rare cases where exceptional circumstances of peculiar urgency are shown to exist.' ” Hawk, 321 U.S. at 117, 64 S.Ct. at 450 (quoting United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138 (1925)). As the Court in Rose noted immediately thereafter, the doctrine enunciated in Ex parte Hawk is now codified at 28 U.S.C. § 2254 (1982). This section reads in relevant part:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

28 U.S.C. § 2254(b) (1982) (emphasis added).²¹

In the instant case, the State of New Jersey has advised us that Landano does have an available state remedy under N.J. Sup.CtR. 3:20-2. Although the burden rests with him, Landano has not disputed that Rule 3:20-2 provides him with an available remedy. The Rule states, in relevant part, that a “motion for a new trial based on the ground of newly discovered evidence may be made at any time.... ” We have no choice but to conclude that there is not an “absence of available State corrective process” in this case. Cf. Santana, 685 F.2d at 75 (“At least where a fair reading of the state post-conviction relief statute indicates that a state court might well entertain constitutional claims not raised in prior proceedings, and in the absence of a state court decision clearly foreclosing such a result, we cannot conclude that petitioner has demonstrated compliance with the exhaustion requirement”).

Moreover, neither the district court not Landano provides us with any “special circumstances” which would render this “process ineffective.” Assuming, arguendo, that Landano’s present claims have merit, even “clear violations” of constitutional rights do not provide the federal courts with an appropriate reason for excusing the exhaustion requirement. See Duckworth, 454 U.S. at 3, 102 S.Ct. at 19. Even if we were to reach the merits and so conclude, a pattern of prosecutorial suppression of exculpatory evidence, without more, would not render the state court remedy available to Landano ineffective. We cannot assume that state courts will be any less protective of the constitutional rights of criminal defendants than federal courts.²² See, e.g., Darr, 339 U.S. at 205, 70 S.Ct. at 590 (quoting Ex parte Royall, 117 U.S. at 252, 6 S.Ct. at 740). Nor should we assume that the state courts, after the dismissal of the petition herein, will be anything but expeditious in its consideration of Landano’s claims.²³

III.

For the foregoing reasons we believe that the district court erred in holding that Landano had exhausted his state remedies with respect to the new Brady claims he raises in his Rule 60(b) motion. Moreover, we do not find sufficient reason to excuse the exhaustion requirement in this case. Therefore, we will reverse the judgment of the district court and remand, directing the district court to vacate the order conditionally granting the writ of habeas corpus and dismiss Landano’s petition. We also direct the district court to vacate all orders it issued in this matter subsequent to its initial order denying Landano’s petition. Lan-dano is free to exhaust his available state remedies with respect to his present Brady claims and thereafter petition the federal courts if necessary. Since the State’s files will be returned, we will deny the State’s petition for mandamus as moot. And because of our disposition of this case, the State’s appeal of the district court’s order on the work product and privilege issues is also moot.

Each party to bear its own costs.

1 . This account of the underlying crime and the subsequent trial proceedings is summarized from prior opinions of this Court and the United States District Court for the District of New Jersey. See Landano v. Rafferty, 670 F.Supp. 570, 573-75 (D.N.J.1987), aff'd, 856 F.2d 569, 570-71 (3d Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989).

2 . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For simplicity, throughout this Opinion we use the generic term “Brady claim” to refer to Landano’s various claims involving State suppression of exculpatory evidence including claims of suppression of impeachment evidence under Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

3 . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

4 . Issue (5) was based on alleged prosecutorial misconduct in coercing the testimony of Roth, destroying relevant photographs, and parading a handcuffed Landano in front of Portas immediately prior to his trial testimony and in-court identification.

5 . The district court also found that the state trial court’s Allen charge did not violate Landa-no's sixth amendment or due process rights.

6 . Although finding no fraud on the prosecutor’s part, the district court reopened the case because of exceptional circumstances under subsection (6) of Rule 60(b). In resolving the merits of Landano’s Brady claims, the district court did not hold evidentiary hearings.

7 . Landano also raised other claims in the district court in connection with his 60(b) motion, however, none are at issue in this appeal. The district court found that "none [of these additional claims] serve[s] as an independent basis for this court to void Landano's conviction on constitutional grounds.” Landano v. Rafferty, 126 F.R.D. 627, 654 n. 13 (D.N.J.1989). Landa-no has not appealed this holding. Thus, even assuming that these additional claims have been exhausted and that the 60(b) motion was properly granted, our decision that two of Landano’s Brady claims are unexhausted does not require us to remand this case to the district court and permit Landano to waive the non-exhausted claims. Cf. Dooley v. Petsock, 816 F.2d 885, 888 n. 1 (3d Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 182, 98 L.Ed.2d 135 (1987).

8 . It is unclear from the Kearney Police Continuation Report whether the name of the witness is "Joseph Pasapas” or "Joseph Basapas.” At any rate, both sides agree that there is no individual by that name who has anything to do with this case, and thus the name must be misspelled. However, the parties disagree on who the actual witness really is.

9 . The district court’s order denying the privilege and confidentiality claims had been stayed by this Court pending the disposition of the mandamus petition. On August 29, 1989, this Court also stayed the conditional writ.

10 . Thus, because of our holding on the exhaustion issue we do not reach the question of whether the district court erred in reopening the habeas proceeding under Rule 60(b)(6), although we find that issue problematic as well. Likewise, we do not reach the State's arguments either on the merits of Landano’s Brady claims or on whether an evidentiary hearing was required.

11 . To avoid confusion, we will refer to these claims as Landano’s "present Brady claims,” and the claims described in the succeeding sentence as his "previous Brady claims.”

12 . The clause introducing the section clearly indicates that the allegations Landano is making in the preliminary statement will be factually supported in the argument section to follow.

13 .The Court of Appeals for the First Circuit has summarized what appears to be the prevailing view in the circuits:

Some claims of constitutional violations— such as ineffective assistance of counsel or unfair trial — encompass an almost limitless range of possible errors. A defendant raising a Sixth Amendment violation who complained in state court about counsel’s failure to object to certain testimony should not be deemed to have exhausted his or her remedies if the federal court claim asserts ineffective assistance of counsel based on a conflict of interest. In such a case, the state court’s analysis of the alleged constitutional error necessarily would differ substantially from the federal court’s consideration of the Sixth Amendment claim. And the defendant’s argument would not have alerted the state court to the claim that formed the basis of the habeas corpus petition.

Lanigan v. Maloney, 853 F.2d 40, 45 (1st Cir.1988), cert. denied, -U.S. -, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989) (dicta) (cases cited therein). Accord Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir.1983) (ineffective assistance of counsel claims); Towndrow v. Henderson, 692 F.2d 262, 265 (2d Cir.1982) (ineffective assistance of counsel claims); Winfrey v. Maggio, 664 F.2d 550, 553 (5th Cir.1981) (ineffective assistance of counsel claims); Turner v. Fair, 617 F.2d 7, 10-12 (1st Cir.1980) (sixth amendment confrontation clause claims); Mayer v. Moeykens, 494 F.2d 855, 858-59 (2d Cir.), cert. denied, 417 U.S. 926, 94 S.Ct. 2633, 41 L.Ed.2d 229 (1974) (fourth amendment claims). We conclude that this description is equally applicable to Brady claims.

14 . Although Johnson appears to be inconsistent with Gibson, the Johnson court did stress that at the state court hearing on the petitioner’s post-conviction claims, the petitioner gave the court notice that his ineffectiveness claim was not based solely on the inadequate investigative aspects of his counsel’s work. Johnson, 531 F.2d at 173 n. 8.

15 . The analytical significance of Landano’s new factual allegations cannot be gainsaid. The dissent overlooks the fact that based only on the factual allegations raised in the state courts, the district court and this Court agreed that Landa-no’s previous Brady claims were based on information that was indeed suppressed, but not material. If it is true, as the dissent suggests, that the method of analysis used by the district court with respect to Landano’s present Brady claims was readily available to the state courts previously, then it follows that not only did the state courts fail to properly employ this analysis, but so did the district court in initially rejecting Landano’s habeas corpus petition and so did this Court in affirming the district court. We believe that this must be wrong because clearly it is the new factual allegations raised by Landa-no, not the recognition of a previous analytical mistake, that have now caused the district court to completely re-evaluate its previous analysis as to the materiality of the prior suppressed material and to incorporate this material into its analysis of the materiality of the present Brady claims. See discussion supra. Obviously, this same analysis was not available to the- state courts previously and thus Landano’s present Brady claims cannot be held to have been exhausted under Zicarelli, 543 F.2d at 472.

16 . We also note that the State of New Jersey argues that this Continuation Report, along with numerous other Continuation Reports, was given to Landano’s trial counsel. The State’s argument on this issue, as well as on other issues relating to the merits of Landano’s claims, is not insubstantial.

17 . Census figures for 1910 through 1960 had been considered in the state court. Hillery v. Pulley, 533 F.Supp. 1189, 1199 n. 21 (E.D.Cal.1982).

18 . Likewise, Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir.1984) and Bright v. Williams, 817 F.2d 1562, 1565 (11th Cir.1987) do not support Landano’s position. These cases stand for the proposition that when a petitioner raises the same constitutional question in both state and federal courts and the resolution of that question requires the courts to review the same factual record, the failure of the petitioner to highlight the same facts in state court as he does in federal court does not mean the federal claim is non-exhausted. See also United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir.1966); United States ex rel. Hamilton v. Ellingsworth, 692 F.Supp. 356, 368 (D.Del.1988).

19 . The exception that Landano urges us to fashion would also frustrate one of the principal goals of the exhaustion requirement, i.e., increasing the likelihood that the factual allegations necessary to a resolution of the federal habeas claim will have been fully developed in state court and thus making federal review more expeditious. With Landano’s suggested exception in place, federal courts would often be called upon to hold evidentiary hearings in order to develop the factual underpinnings for specific Brady claims not previously raised in the state courts. Moreover, this exception would force federal courts to adjudicate the merits of a habeas petitioner’s Brady claims before deciding whether the petitioner has actually exhausted his state remedies. Both consequences militate against expeditious federal court review of habeas corpus claims.

20 . Landano implicitly invokes an additional argument for why our concern with comity would not be frustrated in this case by our adoption of his exception to the exhaustion requirement. He contends that the state courts have been responsible for his failure to uncover the specific Brady material that is the subject of his Rule 60(b) motion. Landano states that he "vainly sought expansive hearings and discovery that would have led to the discovery of the documentary evidence involved here.” Brief for Appellee at 28-29. From the record before us, we believe that this suggestion is unfair to the New Jersey courts. The only requests by Landano we find in the record are for discovery on two specific and discrete issues: the identification of Portas and the coercion of Roth. Landano was provided with some discovery and a hearing in state court as to the former issue. And while the state court denied discovery on the latter issue, even if we were to conclude that such a denial was inappropriate it would be extremely unlikely, or at best highly speculative, that such discovery would have led to the Brady material now at issue. But more importantly, Landano never provided to the state courts the additional information he has provided to the district court in his ex parte application seeking further discovery. We will not assume that the state courts, unlike the district court in this case, would not have granted Landano appropriate discovery had he done so.

21 . Section 2254(b) codifies both the exhaustion doctrine and the “special circumstances” exception to the doctrine:

Ex parte Hawk prescribes only what should "ordinarily” be the proper procedure; all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that "special circumstances” justify departure from rules designed to regulate the usual case. The exceptions are few but they do exist. Other situations may develop. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when there exist "circumstances rendering such [state] process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254....

Darr v. Burford, 339 U.S. 200, 210, 70 S.Ct. 587, 593, 94 L.Ed. 761 (1950) (footnote and citations omitted) (overruled in other respects by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). See Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987); Mayberry v. Petsock, 821 F.2d 179, 183 (3d Cir.), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987). Accord Galtieri v. Wainwright, 582 F.2d 348, 354 & nn. 12, 13 (1978) (en banc).

22 . We cannot agree with the plain implication of the dissent that the federal judiciary has some greater insight into, or sensitivity to, the requirements of justice than that possessed by state courts.

23 . Of course, if there is an inexcusable or inordinate delay by the state in processing his claims for relief, Landano may then seek appropriate relief in federal court. See Burkett, 826 F.2d at 1218. Although we join with the district court in finding Landano’s new allegations deeply troubling, any delay that occurs in the consideration of these claims up until the point Landano files an appropriate motion in the state courts will not have been due to the neglect of the New Jersey courts, but rather the misjudgment of Landano’s counsel as to the requirements of the exhaustion doctrine.