Appeal from judgment entered in the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, District Judge, granting state prisoner's petition for a writ of habeas corpus and ordering that prisoner be discharged from custody unless the State of Connecticut grants him a new trial within sixty days. Judgment of District Court reversed and petition dismissed.
Lumbard, Hays and Timbers, Circuit Judges. Lumbard, Circuit Judge (concurring).
Respondent-appellant, John R. Manson, Commissioner of Correction of the State of Connecticut, appeals from a judgment entered May 10, 1974 in the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, District Judge, granting a petition for a writ of habeas corpus filed by petitioner-appellee, John Wesley Ralls, a state prisoner presently incarcerated at the Connecticut Correctional Institution at Somers where he is serving a sentence of life imprisonment imposed after his conviction by a jury of second degree murder. We reverse the judgment of the District Court and dismiss the petition for a writ of habeas corpus.
Ralls was indicted on June 15, 1970, charged with the murder on March 1, 1970 of his mother-in-law, Mrs. Barbara Howell, in Hamden. After a two week jury trial before Honorable Louis George in the Superior Court for New Haven County, Ralls was convicted on November 17, 1970 of second degree murder. He was sentenced on December 11, 1970 to life imprisonment. Throughout proceedings in the Superior Court, including the trial, Ralls was represented by the Public Defender for New Haven County.
On December 30, 1970, the same Public Defender, who in the meanwhile had been appointed to represent Ralls on appeal, filed in the Superior Court a timely notice of appeal to the Supreme Court of Connecticut from Ralls' murder conviction. On October 28, 1971, at Ralls' request, the Public Defender who had represented him up to that point and who had begun processing his appeal was permitted to withdraw as Ralls' appellate counsel. In his place, a Special Public Defender was appointed by the Superior Court to represent Ralls on appeal and he has done so continuously to date. This Special Public Defender is a lawyer whom Ralls specifically requested be appointed to represent him on appeal.
During the period of approximately three and one-half years from the filing of the notice of appeal to the present date, various steps have been taken pursuant to the Connecticut Practice Book to perfect Ralls' direct appeal to the state Supreme Court. We have been informed that the printed record on appeal was filed with the Supreme Court on October 31, 1973; that the Supreme Court has fixed a briefing schedule that calls for all briefs to be filed by September 18, 1974; and that the Supreme Court has scheduled the argument of the appeal at its October 1974 term, which means that the appeal will be argued during October.*fn1
Backing up for a moment, Ralls filed his original petition for a writ of habeas corpus in the District Court on October 17, 1973, and an amended petition was filed on December 21, 1973. By agreement of counsel in the habeas corpus proceedings,*fn2 the District Court decided the case on the state court record, supplemented by various affidavits, exhibits and stipulations. No evidentiary hearing was held. On May 7, 1974, the District Court filed a memorandum of decision holding, first, that despite the pendency of Ralls' direct appeal to the state Supreme Court, it cannot be said that he has failed to exhaust state remedies as required by 28 U.S.C. § 2254(b) (1970); second, that of Ralls' five substantive claims of alleged denial of federal constitutional rights at his state trial,*fn3 two should be sustained (i.e. "(1) that the jury was improperly informed of his prior arrests", and "(2) that the trial judge's instructions to the jury applied improper pressure on the jury to agree to a verdict"); and, third, that Ralls should be discharged from custody unless afforded a new trial within sixty days. On May 20, the District Court entered an order staying execution of its judgment pending an expedited appeal to our Court. On June 4, we granted appellant's motion for an expedited appeal and we heard the appeal on June 14. At our request, counsel for each side furnished to us, prior to argument, short statements of their respective versions of the essential evidence at the Superior Court trial.
We do not reach the merits of Ralls' substantive claims; nor do we express any opinion as to whether they present issues of federal constitutional dimensions.
We reverse the judgment of the District Court and dismiss the petition solely on the ground that Ralls has failed to exhaust state remedies as required by § 2254(b). Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2 Cir. 1974) ; United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2 Cir.), cert. denied, 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972).
While we deplore the delay in obtaining review of Ralls' murder conviction by direct appeal to the Supreme Court of Connecticut,*fn4 we hold, on the totality of the facts and circumstances presented by the record before us, that this case does not present a clear denial of constitutional rights sufficient to justify federal intervention. Specifically, we hold that there is neither "an absence of available State corrective process [nor] the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." § 2254(b) (last clause). The delay here in processing the direct appeal is not the equivalent of a complete absence of effective state appellate process*fn5 and therefore does not excuse the failure to exhaust state remedies. Interference by the federal court at this time when the direct appeal is just about to be heard by the state Supreme Court strikes us as a particularly offensive violation of the principle of comity in federal-state relations.
We reverse the judgment of the District Court and dismiss the petition for a writ of habeas corpus.
LUMBARD, Circuit Judge (concurring):
I concur, but for reasons different from those stated in the court's per curiam opinion. The procedural history in this case shows not so much that the state prisoner has failed to exhaust his remedies but rather that the pursuit of those remedies has exhausted him. Were it not for the considerations which persuade me that the petition should be dismissed, I would think the petition raised very serious questions of due process because the enjoyment of the right to appeal has been so long delayed by action of the state and its judicial officers that the right has been nullified in large part.
This is another petition by a state prisoner who makes no pretense that he was innocent of the crime for which he was convicted -- here the calculated murder of his mother-in-law -- but who, nevertheless, seeks relief in the federal courts although the alleged defects which he claims occurred in the state proceedings relate only to evidentiary and procedural rulings which could not have affected the integrity of the finding of his guilt. After reviewing several thousand such petitions during 19 years on the federal bench, I have seen only two or three where a claim of innocence could be seriously advanced.*fn1 As I agree with all that Mr. Justice Powell, writing also for the Chief Justice and Mr. Justice Rehnquist, has so persuasively stated in his concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 250-75, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), and what our colleague Judge Friendly has written, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Ch. L. Rev. 142 (1970), I think the time has come to limit consideration of such petitions to those few, rare cases where there is a colorable claim of innocence and an alleged error of constitutional dimensions which goes to the integrity of the fact finding process.*fn2
The uncontroverted proof produced by the state at the four-day trial showed beyond any doubt that Ralls killed his mother-in-law by firing four ...