UNDERDUE v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 15

OPINION FILED. Signed by Judge Renee Marie Bumb on 3/22/16. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
RUDY V. UNDERDUE,
Petitioner,
v.
WILLIE BONDS, Administrator,
South Woods State Prison, and
JOHN J. HOFFMAN, Acting
Attorney General of New Jersey,
Respondents.

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Civ. No. 13-5486 (RMB)

OPINION

BUMB, District Judge
Petitioner Rudy V. Underdue (“Underdue”), an inmate confined
in South Woods State Prison in Bridgeton, New Jersey, filed a Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Pet., ECF No.
1.) The Court dismissed Grounds Two and Three of the Petition and
allowed Underdue to amend Ground One of the Petition. (Opinion, ECF
No. 10.)
This matter is before the Court upon Underdue’s Amended Habeas
Petition. (Am. Pet., ECF No. 12.) After a jury trial in the New Jersey
Superior Court, Law Division, Camden County, Underdue was convicted
and

sentenced

for

first-degree

aggravated

manslaughter,

second-degree possession of a firearm for an unlawful purpose,
third-degree possession of a firearm, and third-degree hindering of

apprehension. State v. Underdue, 2008 WL 4998724 (N.J. Super. Ct.
App. Div. 2008) cert. denied 198 N.J. 473 (2008). Underdue’s direct
appeal and petition for post-conviction relief were denied. Id.;
State v. Underdue, 2013 WL 362739 (N.J. Super. Ct. App. Div. 2013).
He now raises one ground for habeas relief, that his trial lacked
fundamental fairness based on the trial court findings that:
(a) [Investigator] Wilson has sufficient
probable cause to seek a search warrant before
her warrantless entry (even if she did not act
on that probable cause); and (b) a search upon
a warrant would have been conducted anyway (on
the basis of the information Wilson would have
obtained from her follow-up interviews) and
that search would have produced the very same
Additional evidence.
(Am. Pet., ECF No. 12 at 3.) Respondents filed an answer to the habeas
petition. (Answer, ECF No. 14.)
I.

BACKGROUND
The New Jersey Superior Court Appellate Division made the

following findings of fact on Underdue’s direct appeal:
On August 31, 2003, Investigator Diane Wilson
of the Camden County Prosecutor's Office
applied to a judge of the Superior Court for a
search warrant to conduct “[a] complete
forensic search” of 1135 South 8th Street,
Camden, later revealed to be defendant's
residence. In her affidavit, she noted that on
August 30, Camden police responded to a report
of blood dripping from a 1990 gray Honda Accord
parked at Broadway and Mt. Vernon Street. The
police noticed an odor of decomposition and
numerous flies buzzing around the trunk, and
when they opened it, they discovered a human
2

body, later identified as Richard Mora-Batista,
wrapped in a sheet. He had been shot multiple
times.
Wilson detailed how police discovered the
victim's name through a missing persons report
filed in Bronx, New York, by the victim's
girlfriend, Letty Bonilla. Bonilla went to
Camden and when interviewed by the police told
them that Mora-Batista went to Camden on August
26 to meet with someone known to her only as
“Rudy.” Bonilla pointed out 1135 South 8th
Street as Mora-Batista's intended destination.
According to Bonilla, after squabbling over the
price of a kilogram of cocaine that he had
supplied to Rudy the day earlier, Mora-Batista
went to Camden to reclaim the drugs armed with
a handgun. Another witness who accompanied
Bonilla, Diocelin Berroa, told the police that
the victim was using the gray Honda Accord in
Camden.
Police officers spoke to a witness, Luis
Legarde-Rios, who lived at 1137 South 8th Street
and who identified a photo of the victim as
someone who frequently visited the house next
door in a 1990 Honda Accord. Legarde-Rios
claimed that Mora-Batista usually carried
packages into the house, stayed only ten to
fifteen minutes, and always left. On August 26,
however, he saw Mora-Batista arrive as usual but
never saw him leave the house. Later, he saw two
other males enter the house. Legarde-Rios left
for a short time, and when he returned to his
home sometime late in the afternoon of August
26, his neighbor, Rudy, gave him his cell phone
number and asked that Legarde-Rios call if he
saw any investigative activity by the police in
the neighborhood.
Legarde-Rios then saw Rudy and his girlfriend,
Vicki, whose full name was Victoria Caban, place
two large boxes in a white truck owned and driven
by Vicki. On August 29, Legarde-Rios saw Rudy
and two other men arrive at 1135 South 8th Street
3

in the white truck, and he overheard Rudy tell
the men to remove the living room carpet and call
him when they were done. Legarde-Rios saw Rudy
return later that evening, change the locks on
the front door of the house, and carry the
rolled-up carpet into the white truck. Wilson
interviewed the maintenance supervisor for the
landlord of 1135 South 8th Street who told her
that new carpeting had been installed in the
apartment approximately one month earlier.
Also on August 29, the police spoke to Vicki's
former boyfriend who told them that she had told
him she was nervous and scared because something
had happened at the house. Wilson learned this
on August 31, and being concerned for Vicki's
well-being, she proceeded to 1135 South 8th
Street. In the final three substantive
paragraphs of the affidavit, Wilson described
what happened when she and several Camden police
officers went to the premises.
V.... There was no answer in response to
a knock at the front door at which time all
proceeded to the rear of the residence
where the back door was noted to be
partially open. Because the partially
opened door was suspicious in light of all
of the circumstances known to the law
enforcement officers present, we entered
the residence after announcing our
presence with weapons drawn searching for
[Vicki], calling out her name as we
proceeded.

W. Proceeding from room to room we
ascertained that there was no one present
within the residence.

X. While moving through the residence the
affiant noted that the living room was not
carpeted, and that in the one [ ] upstairs
bedroom, a fitted sheet that appeared to
4

match the flat sheet in which the body of
Richard Mora-Batista had been wrapped, was
on the bed with items apparently gathered
within it. Nothing within the residence
was touched or disturbed, and, after
ascertaining the [Vicki] was not within
the residence, all police officers
immediately withdrew through the rear.
The search warrant was issued, and on September
1, 2003, Wilson and other investigators
returned to the premises and conducted a
complete forensic search, seizing the bed sheet
and other evidence.
Defendant was ultimately indicted and charged
with Mora-Batista's murder and other related
offenses. Defendant's motion to suppress was
heard on August 8, 2006. He argued that Wilson's
warrantless entry into the premises was
unjustified and that if the information
contained in paragraphs V., W., and X. was
excised from the affidavit, the State had failed
to demonstrate probable cause for the issuance
of the warrant. The judge agreed that based upon
“the four corners of the document,” Wilson's
warrantless entry of the premises could not be
justified; however, he also concluded that
“based upon the affidavit without that
warrantless intrusion evidence included,” the
affidavit contained sufficient probable cause
to justify the issuance of the warrant.
Over the objection of defendant, however, the
judge offered the State the opportunity to
present Wilson's testimony to supplement the
affidavit and establish justification for the
warrantless entry of 1135 South 8th Street. In
all material respects, Wilson's testimony
regarding the homicide and the investigation
she conducted prior to August 31 mirrored what
was contained in the affidavit. She further
testified that on August 31, sometime between
10:00 a.m. and 11:00 a.m., she went to the
premises believing Vicki's life was in danger.
5

After knocking at the front door and receiving
no response, she moved to the rear door, which
was ajar, and observed blood on the “outside
back walls of the house.” Wilson entered the
house with her gun drawn and proceeded to go from
room to room looking for Vicki. In doing so, in
one of the bedrooms, she saw a sheet that matched
the one wrapped around Mora-Batista's body.
Wilson further testified that Camden police had
gone to the premises on August 29, but no one
was home. She went there on August 30, after
dark, and the doors were closed and no one was
home. She was unable to notice whether there was
any blood on the premises' walls at that time.
During direct questioning from the judge,
however, Wilson acknowledged that prior to the
warrantless entry on August 31, she knew only
what was contained in paragraphs A through I of
the affidavit which was based primarily on
information supplied by the Camden police. The
information contained in the subsequent
paragraphs was obtained after she entered the
premises, left, secured the house, and
interviewed the various witnesses, i.e.,
Vicki's former paramour, the landlord's
maintenance supervisor, and, to a further
extent, Legare-Rios, thus obtaining the
information contained in paragraphs J through
U of the affidavit. Wilson expressed her belief
that based solely upon what was contained in
paragraphs A through I, she would not have
applied for a search warrant, “[b]ecause at the
time I did not believe that a crime had occurred
in that residence.” However, after seeing the
blood, entering the premises, and observing the
sheet and the missing carpet, Wilson believed
she had probable cause for the search warrant
even without the further interviews she
conducted. She believed the information
contained in the other paragraphs of the
affidavit
“further
...
support[ed][her]
application and [her] suspicions....”
6

Defendant renewed his argument that in light of
Wilson's
testimony,
after
excising
the
paragraphs regarding the warrantless entry of
defendant's home and the more substantial
interviews of the witnesses that followed, the
affidavit lacked probable cause. The State
argued that Wilson's entry into the premises was
justified
by
the
“[e]mergency
[a]id
[d]octrine.” Alternatively, the State argued
that even if the warrantless entry was improper,
Wilson would have conducted the further
interviews
of
the
witnesses
and
that
information would have nonetheless found its
way into the affidavit, thus supplying
requisite probable cause. In short, the State
contended probable cause was supplied from “an
independent
source”
unrelated
to
the
warrantless entry.
The judge found Wilson to be a credible witness.
He reviewed the contents of paragraphs A through
I of the affidavit and observed “there's a
reasonable basis to believe that [those
paragraphs] might have ... supported a search
warrant.”
However,
without
concluding
definitively that was the case, the judge noted
that Wilson knew about Legarde-Rios because he
“had previously been interviewed by the [S]tate
prior to the entry [of 1135 South 8th Street],”
and he “had all this information that had
nothing whatsoever to do with the entry into the
premises....” The judge reaffirmed his earlier
finding that probable cause existed for the
issuance of the warrant based on all the
information obtained independent of Wilson's
entry into the premises. The judge then
concluded that the warrantless entry was also
justified under the emergency aid doctrine,
citing State v. Frankel, 179 N.J. 586, 847 A.2d
561, cert. denied sub nom. Frankel v. New
Jersey, 543 U.S. 876, 125 S.Ct. 108, 160 L. Ed.2d
128 (2004). He denied defendant's motion to
suppress.
Underdue, 2008 WL 4998724 at *1-4.
7

On direct appeal, Underdue raised the following issues:

(1)

“since the judge initially determined that the information Wilson
included in the affidavit itself did not justify the warrantless
entry of the premises, it was error for the judge to consider
paragraphs V., W., and X of the affidavit in determining whether
probable cause existed;” (2) “the judge abused his discretion in
‘permitting the state to elicit testimony supplemental to the
affidavit;’” and (3) “the judge abused his discretion in finding
Wilson’s entry into the premises was justified under the emergency
aid doctrine exception to the warrant requirement.” Id. at *4.
First, the Appellate Division held that it was apparent the
trial judge initially did not consider the contents of paragraphs
V, W, and X, but instead made his decision as to probable cause without
any reliance on “warrantless intrusion evidence.” Id. Second, the
trial judge did not err in permitting the State to supplement the
record through Wilson’s testimony, which was critical to a thorough
review of the issues presented. Id.

Third,

the

Division stated:
The judge concluded that [Wilson] acted in
accordance with the emergency aid doctrine
which “requires that public safety officials
possess an objectively reasonable basis to
believe . . . that there is danger and need for
prompt action.” Frankel, supra, 179 N.J. at 599,
847 A.2d 561. We decline the opportunity to
address whether application of the doctrine
provides a separate rationale for denying the
8

Appellate

motion. The judge’s findings in this regard,
however, are indicative of his conclusion that
Wilson’s actions were not the product of
“flagrant police misconduct.” The motion to
suppress was properly denied.
Id.
II.

DISCUSSION
A.

Standard of Review

28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim-(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.

“Contrary to clearly established Federal law” means the state
court applied a rule that contradicted the governing law set forth
in U.S. Supreme Court precedent or that the state court confronted
a set of facts that were materially indistinguishable from U.S.
Supreme Court precedent and arrived at a different result than the
Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase
9

“clearly established Federal law” “refers to the holdings, as opposed
to the dicta” of the U.S. Supreme Court’s decisions. Williams, 529
U.S. at 412. An “unreasonable application” of clearly established
federal law is an “objectively unreasonable” application of law, not
merely an erroneous application. Eley, 712 F.3d at 846 (quoting
Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
B.

Analysis

In support of his habeas petition, Underdue contends

Wilson’s

testimony that she would not have applied for a search warrant based
solely on the information supplied to her by other officers prior
to the warrantless entry negates the State Court’s finding that
Wilson had sufficient probable cause to seek a search warrant before
her warrantless entry. (Am. Pet., ECF No. 12 at 4.)
Underdue also contests the State Court’s finding that a search
upon a warrant would have been conducted on the basis of information
Wilson obtained from her follow-up interviews, and the search would
have produced the same additional evidence. (Id. at 5.) Underdue
argues:
[T]he fact that Wilson conducted further
interviews after the warrantless search
solidifies her reason for not seeking a search
warrant prior to her warrantless entry.
Furthermore, information obtained after a
warrantless search is inconsequential as to
establishing probable cause prior to said
warrantless search. Moreover, as a direct
result of the warrantless search, Wilson was
10

privy to crime facts that should would not have
otherwise known when she conducted further
interviews. Consequently, the State Court’s
finding that the search upon a warrant would
have produced the very same evidence as the
warrantless search even if Wilson never entered
the premises is speculative at best.
(Id.) Thus, Underdue contends the State Court findings are an
unreasonable determination of the facts in light of the evidence
presented, and admission of “otherwise inadmissible evidence”
rendered his trial unfair. (Id. at 5-6.)
Respondent asserts that Underdue is not entitled to habeas
relief because he is claiming a violation of the Fourth Amendment,
but the trial and appellate courts gave him a full and fair
opportunity to litigate his Fourth Amendment claims. (Answer at 2-3.)
Underdue’s motion to suppress was heard by the trial judge on August
8, 2006. (Id. at 3.) Underdue then challenged the trial court’s denial
of his motion to suppress on direct appeal. (Id. at 7.) Therefore,
Respondent contends Stone v. Powell, 428 U.S. 465, 495 (1976)
precludes habeas relief. Alternatively, Respondent contends that the
State Court findings were not unreasonable. (Answer at 7-12.)
In Stone v. Powell, 428 U.S. 465 at 469, the Supreme Court
addressed the important issue of whether:
a federal court should consider, in ruling on
a petition for habeas corpus relief filed by a
state prisoner, a claim that evidence obtained
by an unconstitutional search or seizure was
introduced at his trial, when he has previously
11

been afforded an opportunity for full and fair
litigation of his claim in the state courts.
The Court held that if the State provided a full and fair opportunity
to litigate the Fourth Amendment claim, “the Constitution does not
require that a state prisoner be granted federal habeas corpus relief
on the ground that the evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” Id. at 482.
The Court noted that the purpose of the exclusionary rule is
that it would deter future unlawful police conduct. Id. at 484.
Although the courts have an interest in preserving the integrity of
the judicial process, this does not always justify exclusion of
highly probative evidence. Id. at 485. The justification for
exclusion is minimal “where federal habeas corpus relief is sought
by a prisoner who previously has been afforded the opportunity for
full and fair consideration of his search-and-seizure claim at trial
and on direct review.” Id. at 486.
The Court weighed the utility of the exclusionary rule against
the costs of extending it to collateral review of Fourth Amendment
claims. Id. at 489. The costs associated with the exclusionary rule
at trial and on direct appeal are diverting the focus of the trial
from the central concern of innocence or guilt, and excluding
physical evidence that is typically reliable and the most probative
evidence bearing on guilt. Id. at 489-90. “[T]he disparity in
12

particular cases between the error committed by the police officer
and the windfall afforded a guilty defendant by application of the
rule is contrary to the idea of proportionality that is essential
to the concept of justice.” Id. at 490.
In the context of federal habeas review after the State provided
a full and fair opportunity to litigate the Fourth Amendment claim,
the Court found there was minimal “effectuation” of the Fourth
Amendment but substantial societal costs to application of the
exclusionary rule. Id. at 495. “Even if one rationally could assume
that some additional incremental deterrent effect would be presented
in isolated cases [by allowing review of Fourth Amendment claims in
federal

habeas

actions],’

this

would

be

“outweighed

by

the

acknowledged costs to other values vital to a rational system of
criminal justice.” Id. at 493-94.
Underdue contends that the admission of “otherwise inadmissible
evidence” rendered his trial unfair. Although phrased as a due
process

violation,

his

reference

to

“otherwise

inadmissible

evidence” is clearly a challenge to the State courts’ denial of his
motion

to

suppress

the

evidence

under

the

Fourth

Amendment.

“Exclusion is ‘not a personal constitutional right,’ nor is it
designed to ‘redress the injury.’” Davis v. U.S., 131 S.Ct. 2419,
2426 (2011) (quoting Stone, 428 U.S. at 486) (additional citations
omitted)).
13

Underdue’s

challenges

are

directed

at

the

State

Court’s

conclusions rather than whether he was provided a full and fair
opportunity to present his claims. Upon review of the transcript of
the hearing on his motion to suppress (Transcript of Motion, ECF No.
14-12) and the brief Underdue submitted on direct appeal (Brief and
Appendix on Behalf of Defendant-Appellant, ECF No. 14-5) Underdue
had a full and fair opportunity to litigate his Fourth Amendment
claims in the trial court and on direct appeal. Therefore, Stone v.
Powell precludes habeas review of his claim.
III. CERTIFICATE OF APPEALABILITY
This Court must determine whether Underdue is entitled to a
certificate of appealability in this matter. See Third Circuit Local
Appellate

Rule

22.2.

The

Court

will

issue

a

certificate

of

appealability if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Underdue has not made a substantial showing, and this Court will not
issue a certification of appealability.
IV.

CONCLUSION
In the accompanying Order filed herewith, the Court will deny

the habeas petition.
s/Renée Marie Bumb
RÉNEE MARIE BUMB
United States District Judge
Dated: March 22, 2016
14