The opinion of the court was delivered by: LEVAL
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was charged in New York Supreme Court with murder in the second degree (two counts), kidnapping in the second degree, and criminal possession of a weapon in the fourth degree. His motion to suppress statements made by him to police officers was denied after hearing.
On November 17, 1975, Petitioner was convicted on all counts. He was sentenced to serve twenty-five years to life on the murder conviction, and zero to fifteen years for kidnapping. The judgment was affirmed by the Appellate Division; leave to appeal to the Court of Appeals was denied. On July 30, 1980, Petitioner moved to vacate his judgment pursuant to Crim. Proc. 440.10 on the same grounds as this petition. This application was denied; the Appellate Division did not grant leave to appeal.
On October 22, 1974, Petitioner McPhail accompanied four friends to Evander Childs High School in the Bronx, and there helped to force the victim, Anthony Graham, into a rented U-Haul Truck. They proceeded to a rural, residential area where the murder took place. After some, or all, of the men had taken a turn firing a shot at the victim, the body was dumped into a stream and the men drove away.
On October 28, 1974, Detectives Avery and Kralik of the White Plains Police Department went to the Petitioner's home in the Bronx. The detectives entered the apartment and observed petitioner standing in the hallway between two rooms. Detective Avery read petitioner his rights and requested that he accompany them to headquarters. Petitioner agreed and the three proceeded to the 47th precinct. The officers advised McPhail that two other men were under arrest for homicide and that they had information that he was involved with the death of Anthony Graham. During the trip to the police station, petitioner discussed the homicide with the detectives and stated that Graham had "gotten everything he deserved." Petitioner described the incident in detail and supplied the officers with the name of one of the participants.
Later that day, the same officers accompanied McPhail from the 47th precinct to the White Plains Police Headquarters. Petitioner again discussed the shooting with the officers and informed them that he had shot Graham in the arm. These two conversations with the officers were the subject of the Huntley Hearing.
Petitioner raises four constitutional issues, only one of which warrants extended discussion. Petitioner contends that Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), under which his arrest would arguably have been illegal, should be given retroactive effect on collateral attack.
In Payton, the Court held that police may not make a warrantless and non-consensual entry into a home to effect a routine felony arrest. Such an arrest is presumptively unconstitutional and the state has the burden of rebutting the presumption by showing that exigent circumstances existed. In Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), decided with Payton, defendant Riddick was sleeping in his bedroom when a policeman knocked at his door. Riddick's three year old son answered the door, the policeman entered and arrested Riddick. The Court found that there had been sufficient time to obtain a warrant and that there were no exigent circumstances to justify the warrantless arrest. New York's probable cause standard for warrantless arrests in the home was rejected as a violation of the fourth amendment and Riddick's habeas corpus petition was granted.
Since Payton, the Supreme Court has vacated judgment and remanded for reconsideration several cases on direct appeal. See, Busch v. Florida, 446 U.S. 902, 100 S. Ct. 1826, 64 L. Ed. 2d 255 (1980); Brown v. Florida, 446 U.S. 902, 100 S. Ct. 1826, 64 L. Ed. 2d 254 (1980); Vidal v. New York, 446 U.S. 903, 100 S. Ct. 1826, 64 L. Ed. 2d 255 (1980); Gordon v. New York, 446 U.S. 903, 100 S. Ct. 1827, 64 L. Ed. 2d 255 (1980). On remand, the state courts have generally viewed the Supreme Court's action as an indication that Payton is to be given retroactive application to cases on direct appeal. See Busch v. Florida, 392 So.2d 272, 274 (Dist.Ct.App.1980). See also United States v. Vasquez, 638 F.2d 507 (2d Cir. 1980). That court limited its holding to cases on direct review. The Supreme Court has expressed no view as to cases in which the issue is raised on collateral attack after termination of all appeals.
Retroactive application of newly articulated constitutional principles is neither prohibited nor required by the Constitution. Brown v. Louisiana, 447 U.S. 323, 100 S. Ct. 2214, 65 L. Ed. 2d 159 (1980); Linkletter v. Walker, 381 U.S. 618, 629, 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601 (1965). The test employed to determine whether retroactive application is appropriate requires consideration of three criteria: (a) the purpose to be served by the new standards; (b) the extent of reliance by law enforcement authorities on the old standards; and (c) the effect on the administration of justice of a retroactive application of the new standards. Brown v. Louisiana, 447 U.S. at 325, 100 S. Ct. at 2218; Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967). "Foremost among these factors is the purpose to be served by the new constitutional rule." Brown v. Louisiana, 447 U.S. at 328, 100 S. Ct. at 2219 (quoting Desist v. United States, 394 U.S. 244, 249, 89 S. Ct. 1030, 1033, 22 L. Ed. 2d 248 (1969)).
Where the major purpose of the new doctrine is to rectify a prior practice that "substantially impairs" the truth-finding function and casts doubt upon the reliability of a past finding of guilt, full retroactivity is required regardless of the weight of the burden and reliance factors. Brown v. Louisiana, 447 U.S. 323, 100 S. Ct. 2214, 65 L. Ed. 2d 159 (1980); Williams v. United States, 401 U.S. 646, 653, 91 S. Ct. 1148, 1152, 28 L. Ed. 2d 388 (1971) (plurality opinion) (White, J.).
However, the fact that a new constitutional rule in some respects has an impact on fact finding does not require its retroactive application. Assessment of the effect of a forbidden practice on the truth determining process is "necessarily a matter of degree" and a "question of probabilities". Brown v. Louisiana, 447 U.S. 323, 100 S. Ct. 2214, 65 L. Ed. 2d 159 (1980); Stovall v. Denno, 388 U.S. at 297, 87 ...