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July 10, 1981

Bernard GUICHARD, Petitioner,
Harold J. SMITH, Superintendent, Attica Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: NEAHER


On Motion For Reconsideration

 By memorandum and order dated June 8, 1981, the Court denied petitioner's application for a writ of habeas corpus, finding that under New York law he had waived his objection to a jury instruction allegedly improper under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Since petitioner was unable to show cause and prejudice for the State procedural default, the Court concluded that it was barred under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), from addressing the merits of his claim. The action is now here again on petitioner's motion for reconsideration, made on the basis of Washington v. Harris, 650 F.2d 447 (2d Cir., 1981), announced the same day this Court entered its decision. For the reasons which follow, we adhere to the prior decision.

 In Washington, as in the instant case, the habeas petitioner had failed at trial to object contemporaneously to a "Sandstrom" charge, and that objection was first raised on direct appeal to the Appellate Division. However, in response to Washington's appellate argument regarding the jury instruction,

"the State's reply brief did not assert any procedural bar to that objection. Rather, the State's reply brief addressed the objection on the merits." Washington v. Harris, supra, at 451.

 The Appellate Division affirmed Washington's conviction without opinion. The Second Circuit in Washington, noting that the Appellate Division may relieve an appellant of a default under New York's contemporaneous objection rule where the complained of error affected the essential constitutional validity of the trial proceedings, found that under the circumstances of Washington's case this had occurred, and concluded that no procedural bar existed under Wainwright. The Court of Appeals distinguished Washington's case from the opposite result reached in its recent decision in Taylor v. Harris, 640 F.2d 1 (2d Cir. 1981), which this Court relied upon in dismissing the instant petition, by observing that Taylor, unlike Washington, had failed even to raise the objection in the Appellate Division.

 In the case at bar, petitioner, after failing at trial to object to the "Sandstrom " charge, argued in the Appellate Division that such language was objectionable under United States v. Robinson, 545 F.2d 301 (2d Cir. 1976), a federal case disapproving a charge similar to that in Sandstrom. However, this clearly was not a separate point in petitioner's appellate brief, and it appears to have been included merely to add weight to petitioner's principal and express appellate argument, namely, that the trial court erred in declining to charge criminal facilitation as a lesser included offense. The dangers of the "Sandstrom " language were apparently pointed out for the purpose of emphasizing that in the context of an assertedly close fact question regarding intent, the failure to charge criminal facilitation was reversible error. Moreover, petitioner conceded to the Appellate Division that he had failed to object at trial to the "Sandstrom " charge, but argued instead that a waiver should not be found in his case.

 In addition, in contrast to Washington, the State in the instant case did bring to the attention of the Appellate Division petitioner's failure to object to the portion of the charge he sought to attack on appeal. *fn1" Thereafter, having noted its objection, the State opposed petitioner's argument on the merits. The Appellate Division affirmed petitioner's conviction without opinion and the New York Court of Appeals denied leave to appeal.

 Thus, the Court was faced, as were the Courts in Washington, with the difficult question, made necessary by Wainwright, of what inference regarding procedural default may fairly be drawn from an appellate court's affirmance without opinion. While the Court has studied the opinion in Washington, we continue to be of opinion that the case at bar is governed by Taylor v. Harris, supra. In that case, the Court of Appeals for this Circuit considered the habeas petition of Guichard's co-defendant and concluded that no relief from his failure to object at trial to a "Sandstrom" charge could be inferred from the Appellate Division's affirmance without opinion. The Court stated:

"Our position does not change because Taylor's co-defendant Bernard Guichard raised this claim in a post-trial motion to vacate judgment and on an appeal which ended with its being rejected without opinion by New York's Appellate Division ....
"... silence on the part of the Appellate Division is more properly viewed as a decision not to sidestep the general rule requiring a contemporary objection than as a consideration and rejection of a procedurally waived claim. We need not decide whether, in the absence of explanation, state court denial of post-conviction relief always implies that the merits of a claim were not reached because of a procedural default, cf. "Alburquerque v. Bara, 628 F.2d 767, 772 (2d Cir. 1980) ...." Taylor v. Harris, supra, 640 F.2d at 2 n.3.

 It appears from this language that it will be the rare case where a federal habeas court concludes that a State court, with a total "absence of explanation," relieved an appellant of a conceded procedural default. Compare Ulster County Court v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) (State courts' silence regarding procedural default issue was in context of several opinions expressly deciding case on merits); and Alburquerque v. Bara, 628 F.2d 767, 772 (2d Cir. 1980) (in context of remand for express purpose of determining whether procedural default had occurred, Appellate Division decision contained "no reasoned, factually substantiated opinion" finding default).

 Petitioner argues, nonetheless, that Washington "has now made clear that the absence of an objection to Sandstrom error at trial does not constitute procedural default barring habeas corpus if the issue is duly raised in the Appellate Division." Barrett Letter, dated June 9, 1981, at 1. Questions of procedural bar under Wainwright, however, are to be determined "on a case by case basis," Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir. 1981), and this Court is unable to read Washington so broadly. Were petitioner's contention adopted, we would be forced to conclude that the Appellate Division's complete silence signified a refusal on procedural grounds to consider the Sandstrom claim as to Taylor while that same silence as to co-defendant Guichard signified a consideration and rejection of that claim on its merits. Since Taylor and Guichard were tried together and their appeals were responded to by the State in a consolidated brief and decided on the same day, such a result would appear strained to the point of artificiality. *fn2"

 A more likely conclusion, in the Court's view, is that the Appellate Division considered inappropriate the exercise of its narrow discretion to relieve either Taylor or Guichard of their waivers at trial. As the Court's earlier memorandum discussed, in the context of the overall charge, the Court doubts that the Appellate Division would have concluded that because of the unrepeated appearance of the disapproved language in an otherwise proper charge, "the entire trial (was) irreparably tainted." People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 578, 347 N.E.2d 898 (1976), aff'd sub ...

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