Appeal from a denial of a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge. Affirmed.
Gurfein and Meskill, Circuit Judges, and Jon O. Newman, District Judge.*fn* Gurfein, Circuit Judge, Newman, District Judge, concurring.
Petitioner, Macio Ennis, appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying his application, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. The issues raised on appeal relate to petitioner's inability to obtain a transcript of the minutes of a Wade*fn1 hearing for use in connection with the direct appeal of his criminal conviction in state court.
On January 30, 1973, Bertha Reed was sitting in the laundry room of her Brooklyn, New York, apartment building, waiting for her laundry to dry, when a man approached her from behind, put his hand around her neck and held a straight razor close to her face. The assailant forced her into an adjacent incinerator room where he forced her to close the door, turn off the lights and undress. While Miss Reed was undressing, the man made two remarks which left little doubt concerning his intentions. Fortunately, the superintendent of the building happened by and interrupted the crime by opening the door. The man fled, and when he did so Miss Reed caught a glimpse of his face. She recognized him as an individual whom she had seen in the building elevator earlier that day. At trial in the Kings County Supreme Court, Miss Reed identified petitioner as the man who had attacked her. She also testified that she had identified petitioner on two occasions prior to trial. The first occurred while she was in the hospital for reasons unrelated to this case. A police detective showed her a photographic spread from which she selected a picture of petitioner. The second occurred in the Brooklyn Criminal Courthouse when, at the request of a police detective, Miss Reed walked into a courtroom where the petitioner was present.*fn2 She identified the petitioner as her assailant. Apparently the recognition was mutual, for when the petitioner saw Miss Reed he left the courtroom. A jury convicted the petitioner of second degree kidnapping, N.Y. Penal Law § 135.20, and he was sentenced to an indeterminate term of imprisonment of from five to fifteen years.
Petitioner appealed to the Appellate Division of the New York State Supreme Court, Second Department. Because he was indigent, the petitioner was provided with assigned counsel under N. Y. County Law art. 18-B. In accordance with N. Y. Crim. Proc. Law § 460.70, petitioner was also provided with a free copy of the transcript of his trial. For some reason, it did not contain the minutes of the Wade hearing which had been conducted during the morning of the first day of trial. The minutes of that hearing were in fact available for transcription.
When petitioner, who was incarcerated at the time, noticed that the transcript was incomplete, he contacted both his assigned counsel and the official court reporter for the Kings County Supreme Court. The record does not reveal what counsel's response was, but it is clear that he never obtained the minutes in question. The court reporter's written response was as follows:
Mr. Ennis, I am in receipt of your letter in reference to a hearing that took place during your trial. But, you have not given me the dates or the witnesses. I know that there was a hearing and I can remember what happened, but I don't know exactly what you want. I am willing to get you the minutes if you give me more specifics on it. Also you have not indicated how you wish this to payed [sic] for. Are you asking for them as a part of your appeal? If so, please give me the necessary forms to pay for the minutes. If you are going to pay for them privately, please notify me of this.
The record discloses no further communications between petitioner and the court reporter. Petitioner also moved, in the Appellate Division, for the replacement of his assigned counsel. Counsel filed an affidavit in which he said he had no objection to being relieved, and in which he complained that petitioner "constantly seeks to direct all legal proceeding [sic]." The motion was denied.
Petitioner filed a pro se supplemental brief in the Appellate Division. He argued that the absence of the Wade minutes denied him adequate appellate review. See Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956); cf. People v. Pitts, 46 A.D.2d 745, 360 N.Y.S.2d 668 (1st Dept. 1974) (denial of indigent's application for Wade and suppression hearing minutes for use at trial entitled him to new trial).
The Appellate Division did not deal with petitioner's pro se arguments. Instead, it focused on the single issue pressed by his appointed counsel. The court held that under the merger doctrine of People v. Lombardi, 20 N.Y.2d 266, 229 N.E.2d 206, 282 N.Y.S.2d 519 (1967), petitioner's conviction for second degree kidnapping could not stand because the evidence showed only that Miss Reed's detention was incidental to the commission of the crimes of attempted rape and sexual misconduct, crimes with which petitioner was not charged. The court modified the judgment of conviction by reducing it to the lesser included offense of unlawful imprisonment in the first degree, N.Y. Penal Law § 135.10, and the case was remanded for resentencing. People v. Ennis, 50 A.D.2d 935, 377 N.Y.S.2d 600 (2d Dept. 1975).
Prior to resentencing, petitioner, proceeding pro se, sought leave to reargue the appeal based on the failure of the State to supply him with the Wade minutes. After he was resentenced to four years imprisonment, the State, without addressing the merits of the Wade issue, opposed his motion on the ground that the issue had been waived as a result of petitioner's failure to raise it prior to the appeal. The Appellate Division denied leave to reargue, and the New York Court of Appeals subsequently denied leave to appeal.
Petitioner, again proceeding pro se, then filed a § 2254 motion in the Eastern District. Two of his claims are relevant on this appeal. First, he claims that the State's failure to provide him with the Wade minutes denied him adequate appellate review. See Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 ...