The opinion of the court was delivered by: MOTLEY
Petitioners, Frederick and Carol Trippe, have petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 14, 1977, after a jury trial in the New York County Supreme Court, petitioners were convicted of falsifying business records in the first degree, offering a false instrument for filing in the first degree, grand larceny in the second degree, forgery in the third degree, and conspiracy in the third degree. Frederick Trippe was sentenced to an indeterminate term of from one to three years' imprisonment. Carol Trippe was sentenced to an indeterminate term not to exceed three years.
On appeal to the Appellate Division, First Department, both convictions were affirmed without opinion on October 19, 1978. People v. Trippe, 65 A.D.2d 532, 409 N.Y.S.2d 471 (1st Dept. 1978). The New York State Court of Appeals denied leave to appeal on December 12, 1978. People v. Trippe, 46 N.Y.2d 845 (1978).
Petitioners then moved to vacate their respective judgments of conviction on the ground of newly discovered evidence pursuant to CPL § 440.10, subd. 1(g). On August 1, 1979, that motion was denied in the Supreme Court, New York County, Trial Term: part 82. Finally, on March 4, 1979, petitioners petitioned for a writ of error coram nobis in the court of conviction, on the ground that the sentences were unlawful. The petition was denied. Both petitioners are presently on parole.
Petitioners raise several claims in support of their respective petitions for federal habeas relief: that there was improper participation by the trial court judge, in that he excessively questioned the witnesses to aid the prosecution; that the prosecution wrongfully withheld exculpatory notebooks which petitioners had surrendered under a subpoena duces tecum ; that the prosecution wrongfully failed to disclose that its chief witness was an accomplice; that they received ineffective assistance of counsel at both the trial and appellate levels; that they were wrongfully denied a motion to vacate judgments on the grounds of newly discovered evidence; that the prosecutor wrongfully audited, examined and used as evidence, those documents surrendered under the grand jury's subpoena; and that the prosecutor knowingly permitted the false testimony of its principal witness.
Section 2254 of 28 U.S.C. gives the court jurisdiction to entertain habeas petitions subject to the requirement that before relief is granted, all habeas corpus applicants must have exhausted all available state remedies. The Supreme Court in Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971), held that the exhaustion of state remedies is required as a prerequisite to the consideration of each habeas corpus claim, and emphasized the underlying considerations:
If the exhaustion doctrine is to prevent "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution," Ex Parte Royall, supra, at 251 (117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868), it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts.
Picard v. Connor, supra, 404 U.S. at 275-76, 92 S. Ct. at 512-513; accord, Pitchess v. Davis, 421 U.S. 482, 95 S. Ct. 1748, 44 L. Ed. 2d 317 (1975).
Many of petitioners' claims were not presented to the New York appellate courts for review. This is failure to exhaust. Picard v. Connor, supra, 404 U.S. at 275-278, 92 S. Ct. at 512-513; Preiser v. Rodriguez, 411 U.S. 475, 490-95, 93 S. Ct. 1827, 1836-1839, 36 L. Ed. 2d 439 (1973); Pitchess v. Davis, supra, 421 U.S. at 490, 95 S. Ct. at 1753. Specifically, these claims deal with the trial court's remonstrances of defense counsel (for which there were no objections raised at trial), and certain alleged improprieties on the part of the prosecutor: (1) that he improperly used subpoenaed materials; (2) that he generally abused his investigatory discretion; (3) that he failed to disclose the exculpatory statements of a witness (which petitioners do not claim were requested); and (4) that he knowingly permitted false testimony by a principal witness.
As justification for their failure to exhaust, petitioners contend that the court of conviction is biased towards them, and that a fair review is, therefore, not possible. Frederick Trippe's Petition at 5, 79 Civ. 6880 (December 27, 1979). Yet, petitioners offer nothing but this allegation, and fail to substantiate their claims or to provide the court with concrete proof of such bias. After a full review of the record, this court can reach no such conclusion.
Accordingly, the court will review only those claims in respect to which petitioners have exhausted the available state remedies: (1) that they were deprived of a fair trial by the trial court judge's excessive questioning of the witnesses in aid of the presentation; (2) that the prosecution withheld exculpatory material that was contained in the business records which petitioners surrendered under a subpoena duces tecum; (3) that they were wrongfully denied a motion to vacate judgment on grounds of new evidence; and (4) that their trial was unfair due to ineffective assistance of counsel.
(2) Improper Judicial Conduct in the Trial Court
Petitioners point to the trial record to substantiate their claim that they were deprived of a fair trial by the trial court judge's alleged questioning of the witnesses to aid the prosecution. The standard of reviewing such a claim is well settled. "To sustain an allegation of bias as a ground for habeas relief a petitioner must demonstrate, that during the trial the judge assumed an attitude which went further than an expression of his personal opinion and impressed the jury as more than an impartial observer." Glucksman v. Birns, 398 F. Supp. 1343, 1350 (S.D.N.Y.1975). See U. S. v. Aaron, 190 F.2d 144, 146 (2d Cir. 1951); U. S. v. Allied Stevedoring Corp., 241 F.2d 925, 934 (2d Cir. 1957). "A judge's participation ...