Appeal by state prisoner from a decision and order of the United States District Court for the Northern District of New York, Edmund Port, Judge, denying his petition for a writ of habeas corpus alleging, inter alia, that he is imprisoned on the basis of a state bank robbery conviction which was unconstitutionally obtained through the use of his physically and mentally coerced confession and that the state determinations of the voluntariness of his confession were factually and procedurally deficient. Affirmed in part, reversed in part and remanded.
Anderson, Mansfield and Oakes, Circuit Judges.
MANSFIELD, Circuit Judge :
Alfred Lewis, a state prisoner serving a term of 30 to 60 years for bank robbery,*fn1 appeals from an unreported decision and order of the United States District Court for the Northern District of New York, Edmund Port, Judge, denying his petition for a writ of habeas corpus. Lewis alleged, inter alia, that his conviction was obtained through the use of his physically and mentally coerced confession and that state determinations of the voluntariness of his confession were factually and procedurally deficient. The district court denied his petition without a hearing on the ground that the state had accorded him a full and fair post-trial hearing on voluntariness and that the state hearing judge's determination of voluntariness was adequately supported by the record and the law. While we agree that the state court determination adequately determined voluntariness so far as physical coercion is concerned and we affirm as to that issue, we reverse and remand as to the claim of mental and psychological coercion because that allegation has never been sufficiently developed and passed upon by either a state or federal court.
Just after noon, on February 6, 1958, a bank at 155th Street and Third Avenue, Bronx, New York, was robbed of $12,000 by a lone gunman. Eleven days later, on February 17, at approximately 8:30 P.M., petitioner, then a 22-year old black man with a 9th grade education, was arrested in the lobby of an apartment building in Manhattan. According to police testimony given at the robbery trial and questioned by Lewis, he was arrested on the complaint of a Mrs. Elizabeth Waller, a resident of the apartment building. She had earlier related to the police that petitioner, on February 8 or 10, had left a briefcase containing a large sum of money in her apartment. When he returned for it on February 16 he told Mrs. Waller that $1,700 was missing and that he would return for it, an apparent threat which prompted Mrs. Waller to go to the police.
Upon arrest Lewis was immediately taken to the 30th Precinct headquarters where he was kept overnight until about noon of the next day, February 18. He was not booked on any charges and was not arraigned before a Magistrate on that night or the next morning.
The events at the 30th Precinct are in dispute. Petitioner testified on voir dire at his trial that from the time he arrived at the police station until the next morning he was subjected to interrogation and beatings by police officers, was not given any food and was denied the opportunity to sleep. The interrogation, he testified, related to the Bronx bank robbery, not Mrs. Waller's complaint, and petitioner was urged to confess and disclose the location of the robbery proceeds. The testimony of police officers present at the 30th Precinct during most of Lewis' stay there flatly contradicted his allegations of beatings. Other aspects of Lewis' story are corroborated or uncontradicted, however. The police witnesses agreed that Lewis was interrogated intermittently at the 30th Precinct throughout the night about the Bronx robbery. None of them knew whether petitioner had been given any food or allowed to sleep in the short intervals between interrogation sessions. Finally, a lineup and various showups were apparently held during the night and the next morning, with several witnesses to the robbery identifying petitioner as the perpetrator.
At about noon on February 18 petitioner was taken by several detectives to the 42d Precinct headquarters in the Bronx, near the scene of the robbery. He claims that he was again subjected to interrogation and beatings and had still neither been given food nor allowed to sleep. Again the police denied the allegations of beatings, agreed that the interrogations took place, but did not know whether petitioner had been allowed to eat or sleep. During this period the police tried to convince Lewis to cooperate by promising to drop criminal charges pending in another jurisdiction and to accept his claim that the money in the briefcase was gambling winnings, if he would agree to lead them to the money.
Lewis finally gave in at about 2:00 P.M. on February 18 and, in the company of a friend, led the police to the money. Shortly after his return to the 42d Precinct, at about 3:30 P.M., he confessed after further promises of help from the police in the disposition of his case. The confession was repeated in the presence of more detectives and given a third time to an Assistant District Attorney and a stenographer.
On the night of February 18 Lewis was held at the 42d Precinct in a detention cage. He tried to sleep on the floor and had only some candy bars to eat, which a uniformed officer had brought at his request. The next morning he had a bowl of soup and was finally arraigned at 10:00 A.M. on February 19 on bank robbery charges. There was no police testimony to contradict his description of this aspect of his confinement.
It is uncontested that not once during his 38 hours of detention by the police was Lewis ever advised of his right to remain silent or of his right to counsel. In addition, he was at no time allowed to see or speak to anyone but the police, except during the expedition to retrieve the money.
Petitioner's trial began on October 6, 1958. Copies of his confession were introduced into evidence in the face of his objection that it was both false and the product of illegal coercion. Pursuant to the procedure in use in New York at that time both of these issues were left for the jury to resolve on the basis of the evidence and the law. Lewis, along with several police officers, testified on voir dire to their respective versions of the facts as related above. He was found guilty of the robbery and sentenced to 30-60 years imprisonment. The Appellate Division affirmed without opinion, People v. Lewis, 10 A.D.2d 924, 202 N.Y.S.2d 1001 (1st Dept. 1960), and leave to appeal to the Court of Appeals was denied.
Pursuant to a pro se coram nobis petition filed by Lewis in the state court, a Huntley hearing*fn2 was held in January 1970 by Justice Edward T. McCaffrey, who had presided at the original trial, to determine whether the confession was the result of illegal coercion. At the outset of the hearing Lewis, speaking for himself, asked the court to consider and determine "whether defendant's constitutional rights were violated when the Court at Page 667 of the trial record*fn3 refused defendant's request to charge the jury, that it must disregard the confession if it found it to have resulted from mental or psychological pressure and expressly limit [sic] the jury to consideration of physical pressure deciding whether it should accept, or disregard the confession, as per the original corum nobis petition verified August 11, 1969, and the defendant's traverse, connected therewith verified September 8th, 1969, since in view of what has just been said, the jury has not properly passed upon the question of voluntariness as indicated, in People versus Huntley 15, N.Y. 2nd Series, at Page 78." (Hearing Minutes 21-22). This request was thereupon denied by Justice McCaffrey. The evidence consisted of the transcript of the original trial testimony concerning the circumstances surrounding the confession, augmented by testimony of two new witnesses corroborating petitioner's claim of beatings and by further police testimony contradicting the beatings claim. The hearing record reveals that this evidence was introduced in an effort, notwithstanding Justice McCaffrey's earlier denial of Lewis' motion attacking the confession on grounds of mental coercion, to prove such coercion. Counsel for Lewis argued to the court that the circumstances surrounding the obtaining of the confession were "inherently coercive" (Hearing Minutes 89) and the district attorney responded, " so certainly, we can't say that any interrogation that took place the night before so affected his mind, that he could not . . . that his subsequent confession was involuntary." (Id. at 92). In an opinion dated March 24, 1970, which summarized in narrative form the evidence received by him, Justice McCaffrey concluded that the confession was "voluntarily made" and "not the result of physical coercion of any kind." The decision was affirmed on appeal without opinion, People v. Lewis, 35 A.D.2d 1086, 316 N.Y.S.2d 191 (1st Dept. 1970), and leave to appeal to the Court of Appeals was denied.*fn4
Lewis filed a pro se habeas corpus petition in the Western District of New York, received on May 6, 1970, again attacking the voluntariness of his confession on grounds of physical and mental coercion. This was denied by Judge Curtin on June 28, 1971, on the ground that the Huntley hearing had adequately and fairly determined the issues as to voluntariness. A certificate of probable cause for an ...