The opinion of the court was delivered by: CONNER
This is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner Charles Evans is presently confined to the Ossining Correctional Facility pursuant to a judgment entered in the New York Supreme Court, Bronx County, on February 7, 1977, convicting petitioner of burglary in the second degree and sentencing petitioner to a term of four to eight years.
Petitioner's conviction was affirmed by the Appellate Division, First Department, without opinion on July 6, 1978, and petitioner's application for leave to appeal to the Court of Appeals was denied on September 26, 1978. Petitioner further moved for post-conviction relief pursuant to New York Criminal Procedure Law § 440.10 before the Bronx County Supreme Court on grounds of general "prejudicial partiality" by the trial court; this motion was also denied.
In this petition, Evans asserts that his conviction was obtained in violation of his due process right to a fair trial because of error in the trial court's jury charge in that the trial judge failed to inform the jury that the petit larceny charge in the indictment had been dismissed when he submitted the burglary and criminal trespass counts of the indictment to the jury. Evans also asserts that he was denied effective assistance of counsel due to his trial attorney's entering into evidence a hearsay document; failing to impeach the complainant, a prosecution witness, based on discrepancies between her trial testimony and her testimony before the grand jury; and failing to object to the prosecutor's summation and to the trial judge's charge. Finally, Evans alleges that he was denied a fair trial due to the prosecutor's misconduct in impeaching the testimony of the only defense witness, making "improper assertions to the jury which had no basis within the four corners of the evidence as presented at trial," and, in summation, expressing his belief in the testimony of the prosecution witnesses and his disbelief in the contrary testimony of the defense witness.
In connection with these allegations, petitioner has further moved for appointment of counsel, for a copy of the transcript of his trial, and for free copies of certain legal citations.
Respondent asserts that petitioner has failed to exhaust his state remedies with respect to these claims; has failed, in his claim of improper charge to the jury, to allege an error of constitutional dimensions; has failed to allege facts which could constitute ineffective assistance of counsel within the Second Circuit standards that such ineffectiveness must rise to the level at which the trial becomes a "farce and mockery of justice"; and has failed to allege specific acts of prosecutorial misconduct which would rise to the level of a constitutional violation.
It appears to the Court, on review of the trial transcript, the transcript of petitioner's sentencing hearing, and petitioner's pro se brief to the First Department, that petitioner has not raised before the state courts, and thus has failed to exhaust, two of the claims he presents here: that his attorney's failure to impeach prosecution witness Maria Campbell, the complainant, based on asserted discrepancies between her grand jury and her trial testimony rose to the level of a denial of petitioner's Sixth and Fourteenth Amendment right to effective assistance of counsel; and that the trial judge's failure to instruct the jury that the petit larceny count of the indictment, which charged petitioner and his two co-defendants with attempted theft of phonograph records valued at $ 75 from Maria Campbell's apartment, had been dismissed at the close of the prosecution case denied petitioner his right to a fair trial under the due process clause of the Fourteenth Amendment. While petitioner did raise legal claims of ineffective assistance of counsel and of deprivation of his right to a fair trial before the state courts, he did not base his Sixth Amendment claim on this specific alleged defect in his attorney's performance, and did not attack the fairness of his trial by raising this particular omission by the trial judge. Thus it is difficult to say that these claims have been "fairly presented" to the state courts within the meaning of Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971), which "requires that the facts on which the defendant relies have been called to the attention of the state court; " Twitty v. Smith, 614 F.2d 325 at 331. (2d Cir., 1979), (emphasis added); in addition to informing the state court of the legal basis of the claim, id. at 331. This failure to exhaust is particularly critical with respect to petitioner's allegations of judicial misconduct, since comity principles dictate that a challenge to a state judge's conduct receive the most thoughtful consideration by a federal court and that the state courts be given the initial opportunity to review the claims. Gayle v. LeFevre, 613 F.2d 21 (2d Cir., 1980); Johnson v. Metz, 609 F.2d 1052 (2d Cir., 1979).
Even if all petitioner's claims are treated as exhausted, however, neither the claims discussed above nor petitioner's additional claims of prosecutorial misconduct and ineffective assistance of counsel support a grant of the relief which petitioner seeks.
The indictment of petitioner and two co-defendants for burglary in the second degree was based on the following events. Shortly after 1:00 A.M. on May 15, 1976, two teams of police officers responded to a radio call to proceed to a certain apartment on Vyse Avenue in the Bronx. The call was prompted by a report made to the police on emergency number 911 that three male blacks were taking goods through the yard in back of that apartment. When the officers arrived at the apartment, one team covered the front door, while the others climbed up to the window in the back. The officers in front heard voices in the apartment when they arrived, and the tumblers moving in the lock. The door then opened and the officers saw petitioner Charles Evans and his two cousins, Albert Cooks and Dehwan ("Ricky") Cooks, inside; the two cousins halted in response to the officers' order, while petitioner ran to the back of the apartment; and petitioner was then apprehended by the other two officers, who had entered the rear of the apartment. The officers searched the three men and found a screwdriver on Albert Cooks and a package of three hypodermic needles on the petitioner.
The apartment as the officers found it was in a state of total disarray. In the bedroom, the mattress had been removed from the bed and overturned, all the drawers had been dumped out on the floor, all the clothing in the closets had been emptied onto the floor; in the living room, records had been smashed and lay all about, the contents of all the shelves had been swept onto the floor, lamps had been overturned; and in the kitchen, pots and pans and silverware and other items also lay all over the floor. The security gate on the window in the back of the apartment had been ripped off and swung freely on its hinges. The apartment's owner, Maria Campbell, a 76-year old widow, testified at trial that on May 10, when she had left the apartment to go to her live-in housekeeper job in New Jersey, the apartment had been neat and organized; while when she returned, at 9:30 A.M. on the 15th, everything was "just like a garbage pile," a "shambles." Trial transcript at 74. She further testified that when she checked through the apartment she found that she was missing two or three hypodermic needles, which she purchased regularly under a prescription from her doctor for Vitamin B-12 shots for her high blood pressure, Tr. at 77-78, and kept in the bedroom along with other medical supplies.
Defendant Dehwan Cooks, the only defense witness, testified that he and his brother and cousin had gone into the building on Vyse Avenue at the instigation of a girl named Annette; that while they waited for Annette to return with some beer, they noticed that the Campbell apartment was open and went in to see whether anyone was hurt because "the apartment was all messed up"; that Dehwan Cooks tripped over the police lock, locking the door behind them; that while they were in the apartment, none of the three went into the bedroom, and that Dehwan Cooks never saw petitioner pick up anything from the apartment, and did ...