Appeal from an order of the District Court for the Eastern District of New York entered by Judge Eugene H. Nickerson, denying the petition of a state prisoner for a writ of habeas corpus. Affirmed .
Before Moore, Mansfield and Newman, Circuit Judges.
Robert Taylor, a state prisoner, appeals from an order and judgment of the District Court for the Eastern District of New York entered on May 23, 1980, by Judge Eugene H. Nickerson, denying his petition for a writ of habeas corpus, which was sought on two grounds. Taylor's first claim is that the judge of the Supreme Court of the State of New York who presided at the jury trial which ended with his conviction on June 4, 1976, of robbery in the second degree, violated his constitutional rights, as later established by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), see also United States v. Robinson, 545 F.2d 301 (2d Cir. 1976), by improperly charging the jury that a "person is presumed to intend the natural consequences of his acts, unless the act was done under circumstances or conditions which preclude the existence of such intent." Taylor did not object to this instruction at this state court trial or upon his state court appeal. Judge Nickerson denied Taylor's petition on the ground that, since the Supreme Court's decision in Sandstrom was issued after Taylor's state court appeal had been decided, petitioner could still raise the issue in the New York courts collaterally under N.Y.C.P.L. § 440.10(3)(b) and therefore he had not exhausted his state court remedies.
We affirm, but on a different ground from that relied upon by Judge Nickerson. Under the Supreme Court's decision in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), a federal habeas corpus claim is not cognizable where the petitioner waived it procedurally in the state court, unless he can show "cause" for his procedural default and prejudice. Under New York law, Taylor's failure to object to the instruction at trial would amount to a procedural default, N.Y.C.P.L. § 470.05 (subd. 2) (McKinney 1971),*fn1 as would his failure to raise the issue on appeal, N.Y.C.P.L. § 400.10(2) (c).*fn2 It is well settled in New York that failure to object to an erroneous charge constitutes a waiver precluding review. People v. Argibay, 45 N.Y.2d 45, 55, 407 N.Y.S.2d 664, 669, 379 N.E.2d 191 (Ct. of App.1978) ("the failure to object to the charge prevents review in this court"); People v. Cona, 49 N.Y.2d 26, 28, 424 N.Y.S.2d 146, 148, 399 N.E.2d 1167 (Ct. of App.1979) ("To create and preserve a question amenable to appellate review, a defendant normally must raise that issue before the court of original jurisdiction"); People v. Gindi, 409 N.Y.S.2d 522, 65 A.D.2d 627 (App.Div.2d Dept.) ("defendant failed to object to this instruction and the error of law was thereby waived (see C.P.L. § 470.05, subd. 2)"). Nor does it appear that the New York appellate court ignored its own procedural rules in Taylor's case and considered the merits of the unobjected-to claim on the ground that the error of law was at basic variance with the Constitution, People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430 (Ct. of App.1980).*fn3 Moreover, although the district court was led to the erroneous belief that the state court would not have held the "natural consequences" instruction to be erroneous, New York's highest court has recently stated that
"... Sandstrom did not alter the law of this State. For more than a century, the charge condemned in Sandstrom has been held by this Court to be erroneous as a matter of State law" (citations omitted);
People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 587, 407 N.E.2d 430, 432 (Ct. of App.1980). Since no valid cause is shown for Taylor's procedural default, his claim based upon the "natural consequences" charge must fail under Wainwright and it becomes unnecessary to remand the claim to the district court for consideration of its merits.
Taylor's second contention is that the jury's acquittal of him on Count One of the indictment, charging him with a form of robbery in the first degree, was inconsistent with its conviction of him on Count Two, which charged a different form of first degree robbery, and collaterally estopped the state trial judge from reducing his conviction to the second degree robbery charge alleged in Count Three and violated his rights under the Double Jeopardy Clause. We ...