Appeal from dismissal of petition for habeas corpus by the United States District Court for the Southern District of New York, Robert L. Carter, Judge, on the legal ground that petitioner had failed to raise federal constitutional claim in state courts.
Kaufman, Chief Judge, and Smith, Feinberg, Mansfield, Mulligan, Oakes, Timbers, Gurfein, Van Graafeiland, Meskill, Circuit Judges. Oakes, Circuit Judge, with whom Judges J. Joseph Smith and Feinberg concur, concurring in the result. Timbers, Circuit Judge, dissenting.
The petitioner-appellant Gates appealed from an unreported decision in the United States District Court for the Southern District of New York, Hon. Robert L. Carter, Judge, dated May 27, 1976, which denied without a hearing his habeas corpus application. The district court granted him a certificate of probable cause. On appeal a panel of this court by a 2-1 vote reversed and remanded for an evidentiary hearing. Gates v. Henderson, slip op. 1345 (January 12, 1977). [Edit ] On the suggestion of Robert J. Henderson, Superintendent, Auburn Correctional Facility, respondent-appellee, and at the request of a member of the panel of this court for an en banc poll, we granted rehearing en banc. We vacate the panel judgment and decision, supra, and affirm the order of the district court dismissing the petition for a writ of habeas corpus.
At approximately 1:00 a.m. on the morning of September 7, 1966 a policeman, attracted by screaming, entered the Spring Valley, New York apartment of Patricia Gates. He and her upstairs neighbor, Mrs. Mierop, found Patricia Gates mortally wounded by knife stabs, lying on her bed in a pool of blood. She was removed to a hospital and was pronounced dead at 1:20 a.m. Patricia Gates was the estranged wife of the petitioner Arthur Richard Gates, having received a decree of separation from him in June of that year which awarded her custody of their four children. As they left the courthouse petitioner told his wife in the presence of her attorney, "You will never live to enjoy the children. I will see to it myself." The awarding of custody of the children to his wife rankled Gates. Mrs. Mierop was later to testify at his murder trial that two days before the murder she heard Gates tell his wife, "You better enjoy the kids while you have them. You won't have them for long."
At about 1:45 a.m. on the morning of the murder Gates was stopped by a police officer in the business district of Spring Valley for failing to dim his headlights. Upon learning his identity, the officer arrested Gates for assault apparently having received a wanted person bulletin for Gates some ten minutes before. Gates was brought to police headquarters and without protest was fingerprinted and palmprinted.
The investigation of the murder by the police revealed that entrance to Patricia Gates' apartment had been obtained through a bathroom window which had been opened after the screen had been removed. A set of fresh fingerprints was found on the screen so positioned that the prints could have only been made by someone standing outside the first floor apartment and pulling the screen from its place. A palmprint with the fingers pointing into the room was also found on the bathroom windowsill. One fingerprint and one palmprint were positively identified as those of appellant.
Gates was convicted of murder in the first degree in County Court, County of Rockland, New York. On February 14, 1967 Judge Morton B. Silberman sentenced Gates to a mandatory life sentence noting that the jury verdict of premeditated and deliberate murder was fully justified by the evidence. Gates' conviction was affirmed without opinion by the Appellate Division, 29 A.D.2d 843, 288 N.Y.S.2d 862 (2d Dep't 1968) and by a unanimous opinion of the Court of Appeals, 24 N.Y.2d 666, 301 N.Y.S.2d 597, 249 N.E.2d 450 (1969). Chief Judge Fuld in his opinion for the court noted, "The defendant's palm and fingerprints were located on the window through which the murderer apparently entered the house. Such proof, not susceptible of any other explanation, pointed ineluctably to the defendant's guilt and was sufficient to exclude to a moral certainty any other reasonable hypothesis." Id. at 669, 301 N.Y.S.2d at 600. Gates then applied for a writ of error coram nobis which was denied. People v. Gates, 61 Misc.2d 250, 305 N.Y.S.2d 583 (Rockland County Ct. 1969), aff'd, 36 A.D.2d 761, 319 N.Y.S.2d 569 (2d Dep't 1971), motion for leave to appeal denied (1972).
In August 1973 Gates filed a habeas corpus petition in the Southern District of New York raising as the only constitutional issue the lack of probable cause for his arrest. Counsel was appointed for him under the Criminal Justice Act. 18 U.S.C. § 3006A. Counsel argued that the taking of Gates' palmprints*fn1 was in violation of his rights under the Fourth and Fourteenth Amendments since probable cause for his arrest did not exist. Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969). Judge Carter, in denying relief, held that Judge Fuld's opinion had already ruled that the Court of Appeals did not reach the merits of Gates' "fruit of the unlawful arrest" argument since "it was not raised below at all" and that that conclusion had been already upheld "by two courts on state collateral attack." As the district court noted, "The Court of Appeals was merely enforcing procedural requirements under New York law and chose to follow its policy of ignoring claims judged not to have been adequately raised below." Gates v. Henderson, No. 73 Civ. 3865, slip op. at 7-8 (S.D.N.Y. May 27, 1976).
On appeal to this court, a split panel reversed the district court. Judge Oakes, writing for the majority held that counsel's objection to the prints was "ambiguous" and could have been on both Fourth and Fifth Amendment grounds; that under Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976), which had been decided after Judge Carter's opinion, habeas corpus review of search and seizure claims was foreclosed in the federal court only when the petitioner had an opportunity for full and fair litigation of the Fourth Amendment claims; that petitioner had no such opportunity here since the majority found he had made a Fourth Amendment objection at the trial level which was never considered by the state courts. The majority further concluded that even if no Fourth Amendment objection had been made, under Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963) the district court could deny federal habeas relief only if Gates had deliberately by-passed state procedures. Gates v. Henderson, supra, 568 F.2d 830, slip op at 1357-58. Judge Timbers dissented.
The record of the trial of Gates in the Rockland County Court demonstrates beyond doubt that the objections of his counsel to the taking of the palmprints on September 7, 1966 were on Fifth and Sixth Amendment and not at all on Fourth Amendment grounds. Captain Eisgrau of the Clarkstown Police Department was called as a witness by the state. Mr. Newman, counsel for Gates stipulated outside the presence of the jury that Eisgrau had taken Gates' fingerprints and palmprints. The following colloquy ensued:
The Court: Mr. Newman, you inform me you want to make an objection outside the presence of the jury.
Mr. Newman: Right. As I understand it, the District Attorney is about to introduce into evidence fingerprints which were taken by the present witness, Captain Eisgrau of the Clarkstown Police Department.
Mr. Meehan: Did you say fingerprints?
Mr. Newman: Hand prints, and which were taken at the Clarkstown Police Department on the morning of September 7, 1966. While there is no question, and we will stipulate, that they were taken of the defendant in this case, we raise objection not to the fact that they are or not his prints but to the introduction of those prints on the basis that this man's constitutional rights both under the State and Federal Constitution have been violated by the taking of these prints and as such we object to them.
The Court: Your objection is then on constitutional grounds to the mere fact of the taking of the prints?
The Court: I will overrule that objection.
Subsequently, John A. Slater, Identification Officer, Bureau of Criminal Identification, Rockland County Sheriff's office, who also took Gates' prints was called as a witness for the state. Gates' counsel on voir dire outside the presence of the jury made objection to the use of the palmprints taken by Slater and this exchange took place:
The Court: Do you want to be heard on that, Mr. Newman?
Mr. Newman: Other than what I have said, I don't think there is too much further to say. I don't think this defendant has been properly advised of his right prior to the time that this palm print was taken and as such I feel it would be a violation of both the State and federal constitutions to permit this document to be received in evidence at this time.
The testimony is clear, there is no question that no advice of rights was given to the defendant and as such it is prejudicial.
Moreover, Mr. Newman further clarified his constitutional objections of the day before to the Eisgrau palmprinting of Gates:
Mr. Newman: I want the record to indicate, sir, that actually in making this objection yesterday it was intended, although not spelled out in this degree for the reason that trial strategy, if you would call it that, would dictate that I do it this morning after the attempt to get this into evidence, so that the record is clear my objection yesterday on the constitutional grounds also was on the basis that there was no showing that this was free, voluntary giving or necessary, nor was there any advice given to the defendant that this would or could be used against him in evidence at the trial of this matter.
In addition to these colloquies out of the presence of the jury the cross-examination of both officers by Newman makes it crystal clear that his constitutional objection to the palmprints was primarily based on the Fifth Amendment, whether force had been employed to take the prints and whether Gates had been warned that they could be used in evidence against him. The fingerprints were viewed as taken for the purpose of identification but the palmprints were singled out by counsel as being an unusual step only taken for their use on trial. There is not a single mention of the Fourth Amendment and the record is barren of any discussion at any time of the legality of the arrest. No suppression motion was ever made.
In his post-trial motion the only constitutional issue raised by Gates' counsel involving the taking of both fingerprints and palmprints was as follows:
Mr. Newman: Along the same general lines concerning the fingerprints and self-incrimination, I think that our stage of society now, Your Honor, has reached the position where we can no longer consider the taking of fingerprints which are used by police authorities as being a proper way of identifying a person.
I think that we have now reached the stage where our constitutional safeguards are such that I would advance here that in this particular case the taking of the fingerprints themselves constituted a violation of this man's constitutional safeguards.
This is especially true, I would respectfully submit, where they were taken under the circumstances as they were in this particular case, before the man had been convicted of the crime, and I think that as I said before, our society now has reached the intelligent position whereby this can no longer be condoned because, in effect, what we are saying is that although you can not speak to this man, you cannot take his statement from him without certain advice and certain safeguards, you can do physical things to him which compels him to be a witness against himself, and I would respectfully submit that on the ...