Appeal from denial of a writ of habeas corpus by the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, holding that the drug laws of New York State under which appellant was sentenced were not violative of the fourteenth amendment of the Constitution. Affirmed.
Kaufman, Chief Judge, Hays and Oakes, Circuit Judges.
This appeal is from a denial of a writ of habeas corpus by Judge Wyatt below in a memorandum opinion handed down October 9, 1973. The relevant facts, as set forth in the district court's opinion, need to be reiterated here.
Appellant was indicted on February 9, 1970, for criminal possession of a dangerous drug in the first degree, a "class A felony" under New York Penal Law § 220.33 (renumbered § 220.23 effective April 24, 1970).*fn1 That indictment charged appellant with possession of 18 ounces of "light [white] powder" in which there was "cocaine present." It was apparently stipulated in the trial court by the State and appellant's counsel (who is also his counsel on this appeal) that "cocaine was present in each" of the two bags in which the 18 ounces of powder were found. No chemical analysis -- other than that detecting the presence of some cocaine in the white powder -- was performed to determine the "purity" of the 18-ounce mixture, that is, the extent of cocaine present. Appellant at no time requested or moved to have such a test made, but he did demur to the indictment on April 20, 1970, on the same grounds of unconstitutionality of the underlying statutory scheme advanced here, a motion which was in due course denied. In an apparent plea bargain appellant pleaded guilty on September 22, 1970, of violation of Penal Law § 220.22, a class B felony. The record shows that appellant raised before the trial court -- by motion in arrest of judgment -- and before all possible appellate courts, including by petition for certiorari to the United States Supreme Court, the fourteenth amendment argument he advances here, to no avail. People v. Daneff, 37 A. D. 2d 918, 325 N.Y.S. 2d 902 (1971) (conviction aff'd without opinion), aff'd mem., 30 N.Y. 2d 793, 334 N.Y.S. 2d 897, 286 N.E. 2d 273, motion to amend granted, 31 N.Y. 2d 667, 336 N.Y.S. 2d 903, 288 N.E. 2d 805 (1972), cert. denied, 410 U.S. 913, 93 S. Ct. 977, 35 L. Ed. 2d 276 (1973). There is no question that appellant exhausted all available state remedies and that his petition was properly before the court below.
I. "Waiver" and "Standing"
Before proceeding to the merits of appellant's claim, it is necessary to consider whether he has "standing" to raise the claim he makes in this habeas petition.
A. The Guilty Plea. The State argues that appellant, by knowingly and voluntarily pleading guilty to a violation of § 220.22, "waived" any right he otherwise would have had to challenge the constitutionality of the statutes under which he was convicted. A similar contention was carefully considered and flatly rejected by this court in United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974). The fact that certiorari was granted on the State's petition, 417 U.S. 967, 94 S. Ct. 3170, 41 L. Ed. 2d 1138, 42 U.S.L.W. 3685 (1974), does not deprive Newsome of precedential value for us. The State argues that Newsome is distinguishable in that the attack made there was "collateral" to the main question preserved on appeal -- that of the refusal of the trial court to suppress certain evidence. Here, the State argues, there is no other such issue, and the attack goes to the "heart" of the guilty plea itself. The short answer to the State's contention is that the appellate courts of New York, including the New York Court of Appeals, implicitly rejected this argument of the State by themselves considering and rejecting appellant's constitutional claim on the merits. Thus, the State's contention reduces to the proposition that appellant's guilty plea, while it did not preclude him from raising his constitutional claim in the state appellate courts, should be read to prevent his raising the same claim on federal habeas corpus. This argument was rejected in Newsome, 492 F.2d at 1170-71, and we reject it here.
B. The "Purity" Question. The court below raised, without deciding, the question whether appellant had "standing" to challenge the statutes under which he was convicted. We note at the outset that appellant does not simply attack the constitutionality of the statute, § 220.22, under which he pleaded guilty and was convicted. Rather, he, in essence, attacks as violative of the due process and equal protection clauses of the fourteenth amendment the entire statutory scheme of New York which imposes penalties for possession of various drugs, including cocaine, on the basis of the weight of the mixture possessed as opposed to the actual content of the dangerous drugs themselves.*fn2 Appellant's claim throughout, most simply put, is that there is no rational basis for this statutory scheme which assesses punishment on the basis of the possession of a quantity of "mixture" without regard to the actual quantity of the dangerous drug present in that mixture. One of several examples offered by appellant is that a person in possession of 54 grains of pure cocaine -- one grain less than 1/8 ounce -- would, if convicted, be subject to punishment as a misdemeanant, whereas one possessing the same 54 grains of cocaine mixed together with 16 ounces of milk sugar or other diluent would be subject to punishment as a class A felon.
The State argues here, and the court below was concerned by the fact, that nowhere in the record does it appear as to how much cocaine, by weight, was present in the 18 ounces of "white powder" which was seized while in appellant's possession. Thus, the State contends, we must assume for purposes of this appeal that, in light of the guilty plea, the mixture seized could have contained, at least theoretically, 18 ounces of pure cocaine. Assuming this arguendo, appellant's attack on the statutes would be of no avail to him because, the argument runs, reading the statutes to punish on the basis of quantity of drug rather than quantity of mixture possessed results in appellant's still being amenable to punishment as a class A felon. In other words, assuming appellant was carrying pure cocaine, he was not "injured" by the enforcement of the statutes himself. Before reaching the merits of this argument, we note that none of the state appellate courts passing on Daneff's claim ever remotely suggested that Daneff did not have "standing" in this sense to raise his claim. While state-court determinations of standing are not binding on the lower federal courts considering federal questions previously raised in and decided by state courts, cf. Coleman v. Miller, 307 U.S. 433, 466, 83 L. Ed. 1385, 59 S. Ct. 972 (1939) (Frankfurter, J., concurring), it also seems to us that state-court recognition of standing to raise federal constitutional questions in criminal cases might well be particularly persuasive in federal habeas proceedings. If the State considers one of its citizens sufficiently "injured" by the operation of a state statute to pass on that citizen's claim of injury, then the additional federal requirements that the claim be fairly presented to the state courts in the first instance, Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), should serve to ensure that only genuine claims are presented and decided.
The State claims that the burden was on appellant to introduce evidence as to the amount of pure cocaine present in the 18 ounces of white powder seized. This argument would have greater force if the provisions of N.Y.C.P.L. § 240.20, permitting rather broad discovery along the lines of Fed. R. Crim. P. 16, had been in effect prior to appellant's conviction.*fn3 But appellant's failure or omission to move for inspection and scientific analysis before pleading can well be explained by the very narrow view of permissible defense discovery taken over the years by the New York courts in the exercise of their general supervisory powers and absent the express liberalizing statute now embodied in C.P.L. § 240.20. E.g., People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 33-34, 156 N.E. 84 (1927). See Practice Commentary to C.P.L. art. 240, at 465-66 (McKinney 1971). By what we must consider the appellant's inability to obtain pretrial scientific analysis of the drug in question under the New York law applicable to the conviction here in question, the State must be deemed precluded from assertion of the "standing" argument here.
The thrust of Daneff's equal protection and due process claim is that the sentencing scheme established for possessors of dangerous drugs creates inherently unequal, and indeed irrational, treatment of offenders who are guilty of what he contends are identical offenses. Under the New York statutes, the possession of a given amount of pure cocaine (or heroin or marijuana or other drug) and the possession of the same amount of cocaine (or other drug) mixed with various amounts of diluent are viewed as different offenses, the latter carrying heavier sanctions (the sanction varying with the quantities involved). Our inquiry under both fourteenth amendment claims is here the same: under the equal protection clause we must only ascertain whether there is a rational basis for the classifications drawn by the New York legislature, McGinnis v. Royster, 410 U.S. 263, 270, 35 L. Ed. 2d 282, 93 S. Ct. 1055 (1973), the very same inquiry to be made under the due process clause. We think there is such a basis.
Appellant's argument, and a very skillful one it is, may be more fully stated as follows. The statutes differentiate in terms of sanction between persons who possess the same amount of narcotic substance on the basis of the amount of inert or non-narcotic substance or material with which the narcotic is commingled. As a matter of common knowledge he points out that heroin is generally received in the United States in an 80 to 90 per cent pure state, then "cut" perhaps several times to reach the user in a state of 77 per cent or under "purity." Cocaine or, more accurately, cocaine hydrochloride, is marketed, as evidenced by, e.g., Turner v. United States, 396 U.S. 398, 401, 24 L. Ed. 2d 610, 90 S. Ct. 642 (1970), in a mixture often containing as low a percentage as 5 per cent or less of the narcotic. To treat the possessor of 54 grains of pure cocaine only as a misdemeanant and one who possessed that quantity mixed in 18 ounces of powder as a class A felon, he argues hypothetically, is wholly irrational. And he answers the suggestion that possession of the larger quantity of mixture is an indication of likelihood or potentiality of the possessor's being a seller or distributor and of the scale on which he might operate as ...