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Klein v. Harris

decided: December 15, 1981.


Appeal from a judgment of the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge ) granting a petition for a writ of habeas corpus that challenged, as a denial of petitioner's due process right to a fair trial, failure of judge at petitioner's state trial either to direct witness to answer defense counsel's questions or to strike witness' earlier testimony, when witness invoked his fifth amendment privilege against self-incrimination upon being recalled to the stand. Affirmed.

Before Kaufman and Timbers, Circuit Judges, and Ward, District Judge.*fn*

Author: Ward

David Harris, Superintendent of Green Haven Correctional Facility ("the State"), appeals from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.) granting the petition of Eugene Jerome Joseph Klein ("Klein") for a writ of habeas corpus. Following a jury trial in New York State Supreme Court, Queens County, Klein was convicted of felony murder and murder in the second degree. As is described below, Klein unsuccessfully pursued numerous avenues toward post-conviction relief in the New York state courts before petitioning the district court for a writ of habeas corpus. Klein's petition alleged, inter alia, that he was denied his due process right to a fair trial when a witness at his trial invoked the fifth amendment's privilege against self-incrimination upon being recalled to the stand and the trial judge failed either to direct the witness to testify or to strike the witness' earlier testimony. Judge Nickerson held, in an unpublished memorandum decision, (1) that the trial judge's challenged conduct constituted "plain error" of constitutional dimension and (2) that Klein was not precluded by any procedural bar from presenting his challenge to the trial judge's conduct in the context of a federal habeas corpus petition. Accordingly, Judge Nickerson granted Klein's petition and ordered that he be released if not given a new trial within sixty days. We agree with both aspects of Judge Nickerson's holding, and affirm the judgment.


The facts of the case before us, as found by Judge Nickerson after an evidentiary hearing, are as follows. During the afternoon of February 23, 1967, Diana Goodman was stabbed to death in her home, located in the Borough of Queens in New York City. On March 2, 1967, Klein and one Max Rabinowitz were jointly indicted for Goodman's murder. Both men were charged with the crime of murder in the first degree. Rabinowitz, who told the police that Klein had done the stabbing, was permitted to plead guilty to a reduced charge of manslaughter in the first degree and was sentenced to a term of ten to twenty years. He has since been released, apparently after serving ten years.

Klein, who maintained that Rabinowitz had suddenly and unexpectedly killed Goodman while Klein was in an adjoining room, went to trial in Queens County Supreme Court on February 15, 1968. At the trial, three police officers testified that, on three separate occasions after his arrest, Klein made statements in which he admitted that he went with Rabinowitz to Goodman's house on the day of the murder, that he knew Rabinowitz would attempt to take money from Goodman if she refused to give it to him, and that he saw Rabinowitz stab Goodman to death. The prosecutor also called one Michael Bartley, a prisoner awaiting sentence on a plea of guilty covering ten robberies. Bartley, in return for a promise of leniency, testified that, while he and Klein were in a detention area, Klein told him that he had stabbed Goodman.

The first degree murder charge against Klein rested on alternative theories of felony murder and premeditated murder. Klein's trial counsel, believing there to be no viable defense to the felony murder charge, adopted the strategy of attempting to obtain a verdict of manslaughter by convincing the jury that it would be unfair to convict Klein of any offense greater than that to which Rabinowitz had been allowed to plead guilty. To this end, Klein's trial counsel, while aware of Rabinowitz's prior statements that Klein had done the stabbing, called Rabinowitz as a defense witness. Rabinowitz, who had not yet been sentenced, testified that he had pleaded guilty to manslaughter. Upon further questioning by Klein's trial counsel, Rabinowitz, asserting no constitutional privilege, testified that he and Klein had gone to Goodman's house together, that he had intended to take money from Goodman if she would not give it to him, and that he had held Goodman while Klein had stabbed her.

Rabinowitz then left the stand and was taken back to the detention area. Klein's trial counsel also went to the detention area to speak with Klein. As Klein's trial counsel was leaving the detention area, Rabinowitz stopped him and told him that, under pressure from the assistant district attorney, he had lied on the stand. Rabinowitz stated that he, and not Klein, had actually killed Goodman. Klein's trial counsel immediately reported this conversation to the judge and the prosecutor at a conference in chambers. Rabinowitz's attorney was called. Upon his arrival, he told Rabinowitz not to testify further.

The defense thereupon recalled Rabinowitz to the witness stand. At this point, the judge advised Rabinowitz that he had the right to remain silent, and directed Rabinowitz's attorney to stand at his client's side in order to advise him as to each question asked by Klein's trial counsel. Rabinowitz admitted talking to Klein's trial counsel in the detention area. Klein's trial counsel then asked, "Did you tell me at that time that what you had testified to this morning was not true and that my client did not do the killing but that you did the killing?" Rabinowitz refused to answer, invoking the fifth amendment's privilege against self-incrimination. Klein's trial counsel next asked, "Would you tell us what happened on February 23, 1967, at the Goodman house at 81st Avenue?" Rabinowitz again refused to answer on fifth amendment grounds. The judge, though noting that the second question quoted above had previously been asked and answered, allowed Rabinowitz to assert the privilege in both instances. Moreover, he did not strike Rabinowitz's earlier testimony on this subject. No objection was made by Klein's trial counsel at this point.

The judge instructed the jury that it was to return two specific verdicts, one on the felony murder count and one on the premeditated murder count. With respect to the premeditated murder charge, the judge instructed the jury on murder in the first degree, murder in the second degree, and manslaughter in the first degree. In his summation, Klein's trial counsel, pursuant to the strategy described supra, virtually conceded guilt on the felony murder charge. He argued that, in fairness, Klein should receive no greater punishment for the crime than Rabinowitz, and consequently urged the jury to find Klein not guilty on the felony murder count and guilty only of manslaughter on the premeditated murder count. There is no indication in the record that either the prosecutor or the judge questioned the propriety of this argument. On February 26, 1968, the jury found Klein guilty of felony murder and guilty of murder in the second degree. Klein was sentenced to life for felony murder and to twenty years to life for second degree murder, the sentences to run concurrently. Pursuant to the later enacted N.Y.Exec.Law § 259-h(1) & (2), these sentences were subsequently reduced, respectively, to twenty years to life and fifteen years to life.

Klein's case has been the subject of extensive post-conviction proceedings. Before Klein was sentenced, his trial counsel moved, pursuant to N.Y.Crim.Proc.Law § 465, for a new trial, or alternatively for a hearing to determine if perjury had been committed at the trial. In his motion papers, Klein's trial counsel argued that Rabinowitz's exercise of the privilege against self-incrimination upon being recalled to the witness stand "deprived (Klein) of cross-examination and thereby of a fair trial." Klein's counsel also relied upon certain letters written by Rabinowitz to Klein in April 1968, before Rabinowitz was sentenced. In substance, Rabinowitz stated in these letters that he had perjured himself at the trial because the assistant district attorney had threatened to seek imposition of the maximum sentence on him unless he named Klein as the killer. Rabinowitz further stated that, upon being recalled to the stand, he had been coerced into invoking his fifth amendment privilege by threats of a perjury prosecution. At oral argument of Klein's section 465 motion, the assistant district attorney's sole opposition was that "the witness Rabinowitz was not a People's witness, he was not called by the People, he was called by the defense, and I submit that (when) the defense calls a witness who testifies as a defense witness and later recants on his testimony, I don't see why the People should be prejudiced because of that fact." The motion was denied, and Klein was sentenced as described above.

In 1969, Klein sought a writ of error coram nobis, alleging that during the trial the prosecutor knowingly used perjured testimony and suppressed exculpatory evidence, thereby depriving Klein of his constitutional rights to a fair trial and due process of law. This motion was denied by the judge who presided at Klein's trial, on the ground that the matters referred to in Klein's application were "before the Appellate tribunal as matters of record on both review of the conviction and of the order denying a new trial."

In his appeal, Klein claimed that the verdicts were unconstitutionally contradictory, that the judge denied a fair trial by failing to make inquiry with respect to the alleged perjury of Rabinowitz, and that it was error for the judge to refuse to instruct the jury on the crime of manslaughter in the second degree. Both the Appellate Division, People v. Klein, 37 A.D.2d 863, 326 N.Y.S.2d 995 (2d Dep't 1971), and the Court of Appeals, People v. Klein, 31 N.Y.2d 888, 292 N.E.2d 674, 340 N.Y.S.2d 405 (1972), affirmed Klein's conviction without opinion.

Thereafter, in March 1975, Klein filed a petition for a writ of habeas corpus in state court. He argued that the verdicts were unconstitutionally contradictory and that the dual sentences violated double jeopardy. The court dismissed the petition, stating that the writ procedure could not be utilized to review alleged errors passed on in an earlier appeal, and that in any event there was no inconsistency in the verdicts. An appeal from this decision was not perfected.

In 1976, Klein moved, pursuant to N.Y.Crim.Proc.Law § 440.10, for an order vacating the judgment of conviction. He contended that (1) the verdicts were mutually contradictory; (2) the double sentences constituted double jeopardy; (3) he received ineffective assistance from his trial counsel; and (4) the use of perjured testimony and the suppression of Rabinowitz's offer to recant violated his due process right to a fair trial. The judge who had presided at the trial found that Klein's trial counsel was competent and that the other grounds had "been reviewed thoroughly on appeal and in other tribunals." He accordingly denied Klein's motion. The Appellate Division denied leave to appeal. A motion to renew the motion was likewise denied.

Klein then filed the federal petition for a writ of habeas corpus that was the subject of the decision below. The grounds for relief stated in this petition were identical to those relied upon by Klein in his state court section 440.10 motion. Judge Nickerson, in a memorandum decision filed February 5, 1980, ordered that an evidentiary hearing be conducted so as to determine "the existence of perjured testimony at petitioner's trial." The evidentiary hearing took place on May 30 and June 2, 1980. In a memorandum decision filed September 26, 1980, Judge Nickerson held that Klein "was denied due process by the failure of the trial judge either to direct Rabinowitz to answer when he was recalled to the stand or to strike his earlier testimony identifying Klein as the killer." Judge Nickerson thus found it unnecessary to address Klein's other contentions. A judgment was accordingly entered that granted Klein's petition and ordered that Klein be released unless he was given a new trial within sixty days. This appeal followed.*fn1

We proceed below to consider in turn the two substantial questions raised by this appeal: first, whether there is any procedural bar to federal habeas corpus review of the constitutional sufficiency of the state trial judge's conduct, and then, upon concluding that no such bar exists, whether Judge Nickerson correctly determined that the state trial judge committed prejudicial error of constitutional dimension.


Klein has, as described, made repeated efforts, over the course of nearly ten years, to gain relief from the New York state court system. The State contends that, in spite of these efforts, Klein's case is not in a procedural posture that permits a federal court to grant a habeas corpus petition on the basis of the state trial judge's failure either to direct Rabinowitz to answer or to strike Rabinowitz's testimony. First, the State argues that Klein has not properly presented this precise challenge to the trial judge's conduct to the New York state courts, meaning that he has not exhausted his state remedies as required by 28 U.S.C. § 2254(b). Second, relying upon Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the State contends that Klein forfeited this claim as a ground for federal habeas relief by failing to complain of the trial judge's conduct either in a contemporaneous objection at trial or in the course of his direct appeal. While the exhaustion rule imposed by section 2254(b) and the forfeiture rule articulated in Sykes share similar policy bases, we conceive them to be analytically distinct and accordingly proceed to consider them separately.


The rule that a person in state custody must exhaust his state remedies as a predicate to being entitled to institute an application for federal habeas corpus relief is codified in 28 U.S.C. § 2254(b), which provides that "(an) application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." The exhaustion rule is rooted in a policy of fostering federal-state comity by giving the state the initial opportunity to pass upon and correct alleged violations of its prisoners' federal constitutional rights. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971).

In order to give proper account to the policy concern that underlies the exhaustion rule, the courts of this Circuit have adopted a two-stage inquiry for determining whether the requisite exhaustion has occurred. First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. Barnes v. Jones, 665 F.2d 427, at 432 (2d Cir. 1981); Wilson v. Fogg, 571 F.2d 91, 93 (2d Cir. 1978). This rule requires not only that the petitioner must have made the same factual complaint to the state court, see Boothe v. Superintendent, Woodbourne Correctional Facility, 656 F.2d 27, 31 (2d Cir. 1981); Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979), but also that his state court brief must have contained words, such as "under the due process clause" or "under the Constitution," that expressly spell out the petitioner's reliance on the United States Constitution as his legal basis for relief, see Daye v. Attorney General, 663 F.2d 1155 at 1156-57 (2d Cir. 1981); Gayle v. LeFevre, 613 F.2d 21, 22-23 (2d Cir. 1980); Johnson v. Metz, 609 F.2d 1052, 1054-55 (2d Cir. 1979); Anderson v. LeFevre, 509 F. Supp. 199, 200 (S.D.N.Y.1981); Rivera v. Smith, 492 F. Supp. 1017, 1018 (S.D.N.Y.1980).

Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim. See 28 U.S.C. § 2254(c) (providing that "(an) applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented"). Thus, where the petitioner has appealed his conviction to the highest state court, and throughout the course thereof has fairly presented the claim that is now the gravamen of his federal habeas corpus petition, he has satisfied the exhaustion requirement. Wilson v. Harris, 595 F.2d 101, 102 (2d Cir. 1979). However, where the petitioner did not utilize all the appellate procedures of the convicting state to present his claim, he has failed to exhaust his state remedies even if he presented the claim at the trial level. Williams v. Greco, 442 F. Supp. 831, 833 (S.D.N.Y.1977). In such a case, the petitioner must utilize available state remedies for collateral attack of his conviction in order to satisfy the exhaustion requirement. See Johnson v. Metz, supra, 609 F.2d at 1055-56 (instructing habeas petitioner who did not fairly present claim in the course of his direct appeals in New York state courts to proceed by filing a motion to vacate judgment pursuant to N.Y.Crim.Proc.Law § 440.10).*fn2 If he does so, and relief is denied, and he thereupon unsuccessfully employs all the state appellate procedures available for review of such denial, the petitioner has satisfied the exhaustion requirement. Forman v. Smith, 482 F. Supp. 941, 946 (W.D.N.Y.1979), rev'd on other grounds, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1710, 68 L. Ed. 2d 204 (1981).

Applying this two-stage inquiry to the case before us, we conclude that Klein adequately exhausted his state remedies. In his 1976 motion to vacate his conviction, brought pursuant to N.Y.Crim.Proc.Law § 440.10, Klein argued, after describing in detail the facts of Rabinowitz's testimony and subsequent recantation, that "(the) misconduct of the Court and prosecutor to permit the false testimony of the true facts, to stand uncorrected, although it may have been unsolicited, was a denial of defendant's right to fundamental fairness of due process of a fair trial in violation of the Fourteenth Amendment's due process clause." By this argument, particularly the use of the term "the Court," Klein squarely presented the same factual ground for relief that Judge Nickerson ultimately relied upon in granting Klein's federal habeas petition. The only involvement of "the Court" in permitting Rabinowitz's testimony to "stand uncorrected" was in allowing Rabinowitz to assert his fifth amendment privilege and in failing to strike his prior testimony. This was plainly the "misconduct" of which Klein was complaining, and precisely the conduct on which Judge Nickerson based his decision.*fn3 We therefore are convinced that Klein fairly presented his federal constitutional claim to an appropriate state court,*fn4 and that he thereby has satisfied the first prong of the test for exhaustion of state remedies.*fn5

We are also persuaded that the test's second prong is met here. Subsequent to the denial of his section 440.10 motion, Klein sought leave to appeal that denial to the Appellate Division pursuant to N.Y.Crim.Proc.Law § 450.15(1). The Appellate Division, acting pursuant to N.Y.Crim.Proc.Law § 460.15(1), denied leave to appeal. Under N.Y.Crim.Proc.Law § 450.90, no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division. People v. Williams, 342 N.Y.S.2d 75, 76 (App.Div. 2d Dep't 1973).*fn6 Thus, once the Appellate Division denied Klein leave to appeal the denial of his section 440.10 motion, he had reached "the end of the road within the state system." United States ex rel. Graham v. Mancusi, 457 F.2d 463, 467 (2d Cir. 1972).

In Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977), we summarized the two-stage inquiry outlined above by observing that "(in) order to meet the exhaustion requirement, a petitioner must have presented his claim to the state courts at least once, on direct or collateral review." This is precisely what Klein did here, by first fairly presenting to the trial court a federal constitutional claim based on the trial judge's failure either to direct Rabinowitz to answer or to strike Rabinowitz's testimony, and then utilizing all appellate remedies available for review of the denial of that claim. As a result, we hold that Klein adequately exhausted his state remedies with respect to this particular claim. This leaves the question, to which we now turn, of whether Klein forfeited this claim during the peripatetic course of his travels through the New York state court system, thereby precluding federal habeas corpus relief in spite of Klein's satisfaction of the exhaustion requirement.


The State argues that Klein, by not objecting at trial when the trial judge failed either to direct Rabinowitz to answer or to strike Rabinowitz's testimony, and by subsequently omitting to raise the trial judge's conduct as a ground in support of his direct appeal, forfeited any claim based on this conduct as a matter of New York criminal procedure law, meaning, under the analysis set forth in Wainwright v. Sykes, supra, that Klein may not be permitted to present this claim as a ground for federal habeas corpus relief. Having carefully considered the holding and rationale of the Sykes decision, along with the prior decisions elaborating on Sykes rendered by the courts of this Circuit, we conclude that the State's forfeiture argument is without merit.

We agree that Sykes, the latest in a line of not entirely consistent Supreme Court cases dealing with the forfeiture question,*fn7 governs our analysis of the forfeiture issues presented by this case.*fn8 In Sykes, the Supreme Court considered the availability of federal habeas corpus to review a state convict's constitutional claim, where the convicting state's courts had previously refused to consider the claim on the merits because of noncompliance with a state contemporaneous-objection rule. 433 U.S. at 74, 97 S. Ct. at 2499-2500. The Court therein announced the "cause-and-prejudice" test, which bars federal habeas corpus relief under these circumstances "absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation." Id. at 84, 97 S. Ct. at 2505.

After Sykes, then, a federal habeas court, when faced with an argument that it is barred from considering the petitioner's federal constitutional claim because the petitioner forfeited that claim as a matter of state law by committing a procedural default either at trial or during the course of a direct appeal, must make two distinct determinations. First, the federal court must determine whether, as in Sykes, a state court has held that the petitioner is precluded, by virtue of a procedural default, from presenting his federal constitutional claim in state court. Second, assuming that a state court did so hold, the federal court must consider whether there was adequate cause for the petitioner's default and sufficient resultant prejudice to satisfy the Sykes standard. Cause-and-prejudice analysis is, therefore, triggered only if the federal court determines that the state courts have refused to hear a petitioner's federal constitutional claim because of a state law procedural default. Here, as we discuss below, no New York state court has ever refused on such a ground to hear Klein's claim that the trial judge erroneously failed either to direct ...

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