Appeal from orders entered in the Eastern District of New York, Walter Bruchhausen, District Judge, and a judgment entered thereon, dismissing state prisoners' petition for writs of habeas corpus.
Mansfield, Timbers, and Gurfein, Circuit Judges.
On this appeal from orders entered March 20 and 31, 1975 in the Eastern District of New York, Walter Bruchhausen, District Judge, and a judgment entered March 21, 1975, dismissing a petition by state prisoners for writs of habeas corpus, we find that the determinative threshold question, except for one claim of error, is whether petitioners have exhausted state remedies as required by 28 U.S.C. § 2254(b) and (c) (1970). We hold that they have not and therefore affirm the dismissal of the petition on that ground; but, with respect to the one claim of error as to which there has been exhaustion of state remedies, we affirm the dismissal on the merits.
On February 17, 1972, each of the six petitioners pleaded guilty to various degrees of criminal possession of a dangerous drug (heroin), N.Y. Penal Law §§ 220.05, 220.10, 220.15 (McKinney 1967), before Justice William C. Brennan in the Queens County Supreme Court. On May 15, 1972, they were sentenced by Justice Brennan to terms ranging from three years probation to fifteen years imprisonment; two were fined.*fn1
Notwithstanding the fact that the judgments of conviction were entered upon pleas of guilty, petitioners appealed, pursuant to N.Y. Criminal Procedure Law § 710.70 (McKinney 1971), from two orders which had been entered prior to their guilty pleas denying their motions to suppress evidence, which we discuss more fully below. The Appellate Division on December 29, 1972 filed an opinion affirming the determination of the trial court that there was probable cause for issuance of the search warrants based on the police officer's affidavit, but remanded for a hearing on whether the affidavit contained perjurious statements. People v. Cameron, 40 App. Div. 2d 1034, 339 N.Y.S.2d 12 (2nd Dept. 1972).
Following a hearing pursuant to the remand, Justice Brennan on August 14, 1973 filed an opinion again denying the motions to suppress, this time on the ground that petitioners had failed to sustain their burden of proving that the affidavit in question was perjurious. The Appellate Division on May 6, 1974 filed an opinion affirming the three orders which had denied motions to suppress, including Justice Brennan's latest order, and affirmed the convictions of the six petitioners. People v. Cameron, 44 App. Div. 2d 355, 355 N.Y.S.2d 19 (2nd Dept. 1974). The New York Court of Appeals denied leave to appeal on May 29, 1974.
The United States Supreme Court on December 9, 1974 denied certiorari. Cameron v. New York, 419 U.S. 1049, 42 L. Ed. 2d 643, 95 S. Ct. 624 (1974). The petition for certiorari raised for the first time federal constitutional claims of denial of procedural due process, effective assistance of counsel, compulsory process and confrontation of witnesses; it also asserted the claim that previously had been raised of lack of probable cause for issuance of the search warrants.
The instant petition for writs of habeas corpus was filed in the Eastern District of New York on February 5, 1975, from the denial of which by Judge Bruchhausen in two written opinions,*fn2 and a judgment dismissing the petition, the instant appeal has been taken. The habeas petition presented to the district court the same Fourth, Fifth and Sixth Amendment claims which petitioners had raised for the first time in their certiorari petition. Judge Bruchhausen dismissed the habeas petition on the merits.
We affirm the dismissal on the merits of the one claim as to which there has been exhaustion of state remedies; as to the others, we affirm the dismissal for failure to exhaust state remedies.
Although we do not reach the merits of petitioners' claims with the exception of the claim discussed in Section III, infra, we believe that the following recital of petitioners' claims upon which their suppression motions were based is necessary to an understanding of our holding that petitioners have not exhausted state remedies.
Patrolman Lucido Bonino*fn3 was a plainclothesman assigned to gambling investigations. On May 18, 1971, he and a fellow police officer saw Stanley Sims leave his residence in St. Albans, Queens, at 11:10 A.M., join a male negro and drive with the latter to the residence of Marvin and Edith Cameron in Jamaica, Queens. Bonino knew Sims was "involved in illegal policy operations." Records of the New York City Police Department listed Sims as having been arrested 15 times for "Policy Violations, most of which are for Controller of Policy Operations." On the day in question Sims and his companion entered the Cameron residence. Bonino kept the place under observation for five hours. He saw a number of male negroes enter and remain inside. At about 4:30 P.M., Bonino saw Sims leave the Cameron residence with the male negro who had accompanied him there. Sims was carrying a large paper bag. He and the negro returned to and entered Sims' residence in St. Albans. Sims was still carrying the paper bag. Bonino kept the Sims residence under surveillance for the next half hour. During this time he saw numerous male negroes each knock on the front door, speak briefly with Sims, hand him a brown envelope and then depart. The brown envelopes were the kind used by policy collectors. During periods of five or six hours on each of the next two ...