Appeal from a judgment of the United States District Court for the Southern District of New York (Milton Pollack, Judge), denying a petition for a writ of habeas corpus. Affirmed.
Before Lumbard and Newman, Circuit Judges, and Metzner,*fn* District Judge.
William Daye appeals from a judgment of the District Court for the Southern District of New York (Milton Pollack, Judge), dismissing on the merits his petition for habeas corpus challenging the validity of his state court conviction for murder, robbery, and related crimes. We affirm the dismissal without prejudice solely on the ground that state court remedies have not been exhausted. 28 U.S.C. § 2254(b) (1976).
Daye was convicted on June 26, 1976 after a jury trial in the Supreme Court, New York County (Burton Roberts, Judge), of intentional murder, felony murder, and two counts of robbery in the first degree. He was sentenced to concurrent terms of imprisonment of 20 years to life on each murder conviction and 81/3 to 25 years on each robbery conviction. He appealed to the Appellate Division, First Department, alleging primarily that the trial judge's excessive and prejudicial questioning had denied him a fair trial and, in addition, that he had been improperly impeached by evidence of a prior conviction on which he had been adjudicated a youthful offender. The Appellate Division affirmed without opinion, and leave to appeal to the New York Court of Appeals was denied.
In determining whether Daye had exhausted state court remedies, Judge Pollack examined Daye's brief in the Appellate Division. See Twitty v. Smith, 614 F.2d 325, 331-32 n.7 (2d Cir. 1979). The District Court acknowledged that Daye had made no express reference to a denial of federal constitutional rights nor cited any federal cases. But, Judge Pollack noted, the state court brief had repeatedly argued that the trial judge's questioning "deprived the defendant of a fair trial" and deprived him of his "fundamental right to a fair trial." The District Court concluded that these references must have alerted the Appellate Division to the unstated basis of Daye's claim-that he had been denied a fair and impartial trial in violation of rights secured by the Sixth and Fourteenth Amendments. Judge Pollack relied on Twitty v. Smith, supra, 614 F.2d at 332, in which this Court ruled that reference in an Appellate Division brief to lack of "effective assistance of counsel" sufficed for purposes of exhaustion to tender to the state court an implicit claim that the defendant had been denied his Sixth Amendment right "to have the Assistance of Counsel for his defense." Turning to the merits, Judge Pollack concluded that the state trial judge's role had been "active" but not prejudicial and that the cross-examination of the accused involved no error of constitutional dimension.
This Court has frequently ruled that the exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts. Wilson v. Fogg, 571 F.2d 91 (2d Cir. 1978); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2d Cir. 1974). We have especially emphasized the importance of identifying a claim as a federal constitutional claim when challenging the conduct of a state court trial judge. Fielding v. LeFevre, 548 F.2d 1102 (2d Cir. 1977); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 497 (1972).
Just two years ago we applied this strict approach to exhaustion to a habeas corpus petition indistinguishable from Daye's. Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979). Like Daye, Johnson sought habeas corpus relief because of the excessive and prejudicial intervention of the state court trial judge, and, like Daye, his state court briefs, which made no express mention of the Sixth or Fourteenth Amendments, referred to the denial of a fair and impartial trial and characterized a fair trial as a fundamental element of the judicial process. Though the District Court in Johnson had concluded that the exhaustion requirement had been met and that the petitioner was entitled to relief on the merits, this Court reversed, ruling that Johnson had not presented a federal constitutional claim to the state courts. Even though Johnson's brief in the Appellate Division cited ten decisions of federal courts, his fair trial claim was deemed to be an appeal only to state law or to the supervisory power of the state appellate courts, and thus not the "same claim," Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971), that he was presenting to the federal courts. Johnson v. Metz, supra, 609 F.2d at 1054.
Twitty v. Smith, supra, may be viewed as a slight relaxation of the strict requirement that exhaustion requires an explicit federal labeling of a state court appellant's claim; that decision, however, cannot justify overruling or ignoring Johnson v. Metz, supra. Twitty pointedly drew the distinction between the effective assistance of counsel claim in that case and the fair trial claim in Johnson, observing that the latter claim, because of its infrequent presentation as a federal constitutional claim, did not alert the state courts to its federal nature simply by reference to denial of a fair trial. Twitty v. Smith, supra, 614 F.2d at 332 n.8. With Johnson so recently decided and explicitly distinguished from Twitty, its precedential force must be recognized by this panel, unless and until its continuing validity is properly reexamined upon a rehearing en banc. See Kremer v. Chemical Construction Corp., 623 F.2d 786, 788 (2d Cir. 1980).
There is surely room for fair argument whether a federal labeling requirement, as a component of exhausting state court remedies, serves either the interests of comity or justice. Evidence does not abound to indicate that state courts welcome the opportunity to give renewed consideration to a criminal conviction after the "federal" nature of a claim has been explicitly identified. Nor is there much reason to believe that the articulation of facts (here, excessive and prejudicial court questioning) and consequence (here, denial of a fair and impartial trial) are inadequate to afford state courts, fully aware of their constitutional responsibilities, a fair opportunity to decide whether a conviction accords with constitutional requirements. From the standpoint of the accused, it is obviously burdensome to be delayed two or three years in the presentation of what may be a successful challenge to a conviction, simply because of a pleading deficiency by his state court counsel. Moreover, strict adherence to a federal labeling requirement, after Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), runs the risk of placing the federal claim permanently beyond the possibility of vindication in the event that counsel's state court pleading deficiency is deemed a procedural forfeiture.
Some courts appear to have adopted a half-way approach, relaxing exhaustion requirements only when satisfied that the claim on the merits is unavailing. See, e.g., Reese v. Bara, 479 F. Supp. 651, 653 (S.D.N.Y.1979); Boothe v. Wyrick, 452 F. Supp. 1304, 1309 (W.D.Mo.1978); Winegar v. Corrections Department, 435 F. Supp. 285, 291 (W.D.Mich.1977), aff'd without opinion, 582 F.2d 1281 (6th Cir. 1978). While this technique conserves judicial resources, it is analytically unsound and creates the anomalous result that the better the petitioner's claim on the merits, the longer it will take him to have it vindicated.
Whatever our disagreements with an exhaustion requirement that entails explicit labeling of a federal claim, we are obliged to affirm this judgment without prejudice, solely on grounds of failure to exhaust state court remedies, and await a petition suggesting rehearing en banc, which we assume Daye will present.
METZNER, District Judge, concurring:
I would much have preferred to reach the merits on this appeal and affirmed the court below in dismissing the petition on the merits.
The record is complete as to the matters complained of by the petitioner. The parties have fully briefed and argued the merits. No issue or argument was presented to the District Court that was not before the state courts. It is my considered judgment, after reviewing the record, that petitioner was not deprived of a fair trial in violation of the Sixth and Fourteenth Amendments.
In such circumstances, the basis for the exhaustion rule is nonexistent. The doctrine is bottomed on the exercise of judicial restraint to avoid the friction created when a lower federal court upsets a state court conviction without the state court system first being given an opportunity to correct its own alleged constitutional errors. Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S. Ct. 1827, 1836, 36 L. Ed. 2d 439 (1973).
However, there is no possibility of offending the state court when federal review leaves the judgment of conviction untouched. Furthermore, the petitioner, represented here by able counsel, obviously assumes that state remedies have been exhausted and that relief can only be obtained in the federal court. The brief on appeal does not take issue with the holding of the court below that exhaustion has been satisfied. It only addresses the merits, and we have reviewed the merits on this appeal.
Consequently, in a case where the federal court cannot find a federal constitutional infirmity in the state court proceedings after full submission of the issue and review of the record, the petition should be dismissed on the merits. Reese v. Bara, 479 F. Supp. 651 (S.D.N.Y.1979). See also Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321, 359 (1973).
Applying the exhaustion rule in this case creates at least a two-year delay in the ultimate disposition of the issue occasioned by a new round of collateral proceedings in the state and federal court. Prompt disposition of criminal matters is in the best interest of the parties, the criminal justice system and society. I find no problem with adopting a rule which achieves this end in a case where the defendant has been properly convicted.
I must, however, concur in the result even though I find, on the facts of this case, that the exhaustion rule in this circuit exalts form over substance. The footnote in Twitty v. Smith, 614 F.2d 325, 332 n. 8 (2d Cir. 1979), distinguishing Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979), leaves the decision in Johnson the law applicable here. As Judge Newman points out, Johnson v. Metz may only be reexamined upon a rehearing en banc.
LUMBARD, Circuit Judge (dissenting):
I dissent. William Daye claims that he was denied a fair trial by reason of the trial judge's constant interruption of and participation in his trial for murder. The record indicates that he raised this claim in his state court appeals. Moreover, it is crystal clear that the claim made in the state courts asserted a violation of Daye's constitutional rights by reason of the state's failure to give Daye a fair trial. We should pass on the merits of that claim as did Judge Pollack in the district court. As a review of the record shows that Daye's claim is well founded, I would grant the petition for a writ of habeas corpus.
In a five-count indictment, the state charged Daye with the armed robbery of the E & D Luncheonette at 144th Street and Seventh Avenue on March 19, 1974, and with the killing of the restaurant's cook, Isaac Stanback, in the course of the robbery. His trial took place over two years later, and the jury convicted him of felony murder, intentional murder, and two counts of first degree armed robbery. The trial judge, the Honorable Burton B. Roberts, sentenced Daye to concurrent indeterminate terms of from 20 years to life for the murder convictions and to eight and one-third to 25 years for robbery.
At trial, the state produced fourteen witnesses, including six who were present in the E & D Luncheonette when William Daye entered. They testified that the cook, Isaac Stanback, was on the telephone at the rear of the luncheonette. Daye ordered Stanback to get off the phone and when he did not immediately do so, Daye put an automatic pistol to Stanback's side and fired it. The bullet went through Stanback and lodged in the ring finger of Daye's left hand. Daye then took Stanback's wallet and collected money from all the patrons and employees of the restaurant. In the course of the robbery, Daye aimed his gun at Dorothy Taylor, a co-owner of the luncheonette, and pulled the trigger; fortunately, the gun did not fire. Moments later, Daye held the pistol to a patron's head and tried to squeeze off a round and once again the gun jammed.
Having collected about $360, Daye ran out. Juanita Gibbs, one of the patrons who had been robbed, followed him and saw him enter a nearby apartment building at 160 West 142nd Street. She directed the police to the building where they began to search for the suspect. Detective Grant went to the roof and from there he saw Daye climb out of a third floor window and down a drainpipe. Grant ran downstairs, broke through a hall window on the landing, pulled Daye through the window, and arrested him. One of the robbery victims, David Miller, was waiting behind Grant on the landing, and he immediately identified Daye as the man who had terrorized the restaurant a few minutes earlier.
Although Daye had neither the gun nor any money on him when he was arrested, the evidence tying him to the crime was overwhelming. Besides Miller's on-the-spot identification, Daye's hand was still bleeding from the finger wound he suffered in the robbery, and Daye was dressed exactly as he had been in the restaurant, with one exception-the black corduroy jacket was missing. And Detective Leotta found this jacket in a fourth floor apartment at about the same time that Detective Grant spied Daye on the outside drainpipe. Moreover, the gun, a wallet taken from one of the patrons, and $36 in cash in a paper bag were all found in a third floor apartment of that same building within minutes of Daye's arrest. Immediately after Daye's arrest, a bullet which had been fired from the gun was removed from Daye's bleeding finger. Finally, in addition to the above testimony, four eyewitness-victims of the robbery positively identified Daye as their assailant.
In his defense, Daye testified that he was an innocent bystander and himself a victim. He said another man committed the robbery and fired the bullet that killed Stanback and hit Daye's hand. He said he ran away because he had been arrested before for being present when a crime had taken place and he was scared of the police. On his direct testimony Daye admitted to previous convictions for petit larceny and robbery.
Daye's conviction for intentional murder, felony murder and two counts of first degree robbery was unanimously affirmed without opinion by the Appellate Division in October 1979, People v. Daye, 72 A.D.2d 669, 421 N.Y.S.2d 955, and leave to appeal was denied the following month, 48 N.Y.2d 978, 425 N.Y.S.2d 1034, 401 N.E.2d 421. Daye's habeas corpus petition was filed in the Southern District in April, 1980, alleging, inter alia, that he had been deprived of a fair trial by the trial judge's repeated interruptions and interrogations of witnesses. The district court held first that Daye had exhausted his state remedies and so was entitled to seek habeas relief, and second that on the merits Daye was not entitled to the writ. In his opinion of June 6, 1980, Judge Pollack found that the trial judge's questioning, although extensive, was not prejudicial, but merely "aimed at bringing out or clarifying the facts." He noted that on several occasions the trial judge instructed the jurors that his questions were not to be taken as an expression of an opinion on his part. After the district court denied a certificate of probable cause, this court granted a certificate and assigned counsel.
I agree with the district court that Daye's claim that he received an unfair trial in violation of his constitutional rights was raised on his appeal to the Appellate Division and that the petitioner thereby exhausted his remedies in the state courts. Daye's appeal brief repeatedly argued that the trial judge's questioning "deprived the defendant of his right to a fair trial." The New York courts have recognized that this right rests on constitutional and not merely state law grounds, see, e.g., People v. Mees, 47 N.Y.2d 997, 998, 420 N.Y.S.2d 214, 394 N.E.2d 283 (1979); People v. De Jesus, 42 N.Y.2d 519, 520, 523-24, 399 N.Y.S.2d 196, 369 N.E.2d 752 (1977); People v. Crimmins, 36 N.Y.2d 230, 237-38, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975), and Daye's citation of such cases was sufficient to alert the Appellate Division of his federal law claims. See Twitty v. Smith, 614 F.2d 325, 332-22 (2d Cir. 1979).
Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979), cited as controlling here by Judge Newman, is distinguishable. In Johnson, "the primary line of cases cited in support were state cases in which prejudicial conduct by trial judges resulted in reversal by the appellate courts of the state as a matter of state law or under their supervisory powers." 609 F.2d at 1054. Here, the leading case cited by Daye to the Appellate Division, People v. De Jesus, 42 N.Y.2d 519, 399 N.Y.S.2d 196, 369 N.E.2d 752 (1977), rested on both federal and state law. In De Jesus, the Court of Appeals reversed a criminal conviction for prejudicial conduct by the trial judge, citing the following United States Supreme Court cases in support of the principle that there is a fundamental, constitutional right to a fair trial, untainted by judicial partiality: Sheppard v. Maxwell, 384 U.S. 333, 350-51, 86 S. Ct. 1507, 1515-16, 16 L. Ed. 2d 600 (1966); Estes v. Texas, 381 U.S. 532, 540-41, 85 S. Ct. 1628, 1631-32, 14 L. Ed. 2d 543 (1965); Turner v. Louisiana, 379 U.S. 466, 472, 85 S. Ct. 546, 549, 13 L. Ed. 2d 424 (1965); and In re Oliver, 333 U.S. 257, 278, 68 S. Ct. 499, 510, 92 L. Ed. 682 (1948). Moreover, the numerous prior appeals that the New York courts have heard claiming that Judge Roberts had deprived the defendant of a fair trial through excessive questioning*fn1 undoubtedly alerted the Appellate Division here to the nature of Daye's claims. No such special circumstance was shown to exist in Johnson. Therefore, I do not find Johnson an obstacle to federal court review.
I cannot agree, however, with Judge Pollack's conclusion that Daye had a fair trial. It is undisputed that the trial judge continually thrust himself into the examination of witnesses. The issue is whether he confined himself to the clarification of ambiguities or whether he abandoned his role as judge for that of prosecuting attorney. A close examination of the testimony of the state's witnesses, particularly the four victims who identified Daye, and of the testimony of Daye himself, leaves no doubt that the trial judge participated in such a manner that the jury must have concluded that the court was on the side of the prosecution and believed the defendant to be guilty.
William Wright testified that on March 19, 1974, he was at the E & D Luncheonette, sitting in the last booth, facing the door. While he was eating, someone, whom he later identified as Daye, came to use the telephone. At this point, the trial judge interrupted the prosecutor to elicit from Wright that Stanback was using the phone and that Wright knew Stanback.
The prosecutor then asked Wright to narrate what had occurred. Wright stated that, when he began eating his lunch, the friend with whom he was sitting said something to him. Wright turned around and a gun went off. The judge again interrupted and asked Wright whether he had seen a man with a gun, where this man was and whether anyone was with the man.
The Assistant District Attorney resumed and asked who was using the telephone. When Wright replied, "Ike," the judge took over again.
So you saw Ike and you saw this man?
The Court: The man had a gun?
The Court: They were both by the telephone?
Then, when the prosecutor asked about the relative positions of the two people standing near the telephone, the judge came in again:
Q (by the prosecutor). Now, what I'd like you to do, with the Court's permission, is indicate by demonstrating with the court officer standing next to you how Ike was standing and the man was standing.
The Court: Assume that the telephone is against that wall. Use the wall as the wall on which the telephone is located.
A (by Wright). Like this. (Indicating.)
The Court: In other words, Ike the cook was standing by the wall?
The Court: The defendant-withdrawn. A man with a gun.
Mr. Russo (defense counsel): Your Honor, excuse me.
Mr. Russo: I have an application.
Mr. Russo: Based on the Court's statement.
The Court: I said "a man." I struck what I said.
Mr. Russo: I'll make my application later.
You say a man with a gun was standing behind him, right?
The Court: The record should indicate that the right hand-did the right hand have a gun?
The Court: The right hand had a gun and it was against the right side, right?
The Court: And the left hand was as you have it, was on the left front?
The Court: Over the left shoulder and on the left front with the fingers pointing downward on the left side of the individual who was at the phone who(m) you have identified as Ike.
In further questioning by the prosecutor, Wright testified that Daye announced a stick-up and Wright attempted to secret some of his money in his shoe. When defense counsel objected to Wright's saying what he was trying to do, the court again broke in.
The Court: He looked in your direction?
The Witness: Yes, he did.
The Court: After he looked in your direction, what did he do and say?
The Witness: He pointed the gun at me and said, hey, I'll kill you if you move. I said, I'm just trying to get the money. I put the money on the table and he came back and got it.
The Court: You put all the money on the table?
The Court: How much was it?
When Wright testified that Daye collected money from the restaurant patrons, the court interrupted to ask, "Did he always exhibit the gun?", eliciting an affirmative response.
Wright then testified that an old man entered the luncheonette. After sustaining an objection to a bit of speculative testimony, the court asked:
... What did the old man do?
The Witness: Well, he sit him down in a chair and he pounded him in the head with the butt of the gun two or three times maybe.
The Court: You saw the man with the gun hit the elderly man on the head with the gun?
The Witness: Exactly. After that he collected a few more or whatever money he was picking up and then he said, well, that's it, let's go, and he was out the door.
The Court: He went out the same door?
The Witness: The same door, yes.
The Court: Leading to the sidewalk?
The Witness: Yes. That's correct.
Then, after the prosecutor asked his first question about the gun used in the robbery, the court took over:
(The Prosecutor): Now, would you be able to describe the gun; what did the gun look like?
A. The gun is a nickle plated .32 automatic with black handles.
The Court: Nickle plated?
The Witness: .32 automatic.
The Witness: The handles were black.
Next, the prosecutor elicited that the robber's hand was bleeding. He then asked whether the robber said anything about his hand.
A. Yeah. Well, sometime during the robbery he said, you all made me hurt my hand or something like that....
The Witness: He said you made me hurt my hand and I'm going to kill all of you.
The prosecutor then asked about appellant's conversation with others in the luncheonette, and the court again spoke up:
(The Prosecutor): What was (the thief) doing with (the gun)?
A. He was pointing it at people, just pointing like this. (Indicating.)
The Court: Indicating a movement of the hand right to left, left to right.
The Witness: Yes, that's correct.
(The Prosecutor): Did he have any words with the lady behind the counter, the man who had this gun?
Q. What did he say to her?
The Court: Do you know her name?
The Witness: No, I don't. I think it was Dorothy. I think.
The Court: You think it was Dorothy?
The Witness: I think it was.
The Court: Is she one of the owners of the place?
The Witness: She was a waitress.
The Court: She was a waitress?
The Witness: Right. He just pointed the gun at her and said, give me that money or I'm going to kill you.
Q (by the prosecutor). Approximately how many people were inside the luncheonette; do you remember?
The Court: Is that including yourself?
The Court: And including the person with the gun as well?
The Witness: Yeah, I'd say. That's an approximation.
The Court: About 14 or 14 (sic) people including the people that worked there, the deceased, the person with the gun and yourself, correct?
After Wright then identified Daye as the man with the gun, the judge intervened:
Q (by the prosecutor). Mr. Wright, I want you to look around this courtroom and tell me if you're able to see that or identify that who(m) you see in the courtroom?
Q. Will you point him out, please?
The Court: Indicating the defendant?
Mr. Russo: Yes, I'll concede that the witness has indicated the defendant who is the only black man sitting in the well of the courtroom at the counsel table.
The Court: Any question about that; is ...