En banc rehearing of panel decision, 663 F.2d 1155 (1981), affirming, on ground of lack of exhaustion of state remedies, a judgment of the United States District Court for the Southern District of New York, Milton Pollack, Judge, dismissing petition for a writ of habeas corpus. Panel decision vacated; appeal remanded to panel. Judge Van Graafeiland dissents in a separate opinion.
Feinberg, Chief Judge, and Kaufman, Oakes, Van Graafeiland, Meskill, Newman, Kearse, Cardamone, Pierce, and Winter, Circuit Judges.*fn* Van Graafeiland, Circuit Judge, dissenting.
The issue presented for our en banc consideration in this appeal concerns the standard for determining whether state remedies have been exhausted so as to permit federal habeas corpus review of a state court conviction. Appellant William Daye, a New York state prisoner, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, Milton Pollack, Judge, contending principally that, in his state trial for murder and robbery, he had been denied a fair trial in violation of his federal constitutional rights. The district court ruled that Daye had exhausted his state remedies, but dismissed the petition for lack of merit. Daye appealed the dismissal of his fair trial claim,*fn1 and a divided panel of this Court, without reaching the merits, affirmed on the ground that Daye had failed to exhaust his state remedies. 663 F.2d 1155 (2d Cir. N.Y. 1981). On en banc reconsideration, we conclude that Daye had exhausted his state remedies. We therefore vacate the decision of the panel and return the matter to the panel for consideration of the merits.
Daye was convicted in New York Supreme Court in June 1976 of felony murder, intentional murder, and two counts of first degree robbery. The events leading to his conviction are set forth in detail in the opinions of the panel, 663 F.2d 1155, familiarity with which is assumed. In brief, the state presented evidence at trial that on March 19, 1974, Daye robbed patrons and employees of a restaurant, shot and mortally wounded the restaurant's cook, attempted unsuccessfully to shoot others in the restaurant, and fled. Daye was followed by one of his victims to a building two blocks away, and was soon apprehended there by police as he was trying to climb down a drainpipe. Daye's defense was that he had been a victim of the robbery rather than its perpetrator, and that he had fled the restaurant because he had a prior arrest record and was afraid he would be accused of the robbery.
Daye appealed his conviction to the Appellate Division of the Supreme Court, complaining principally that the trial judge had "assumed an obviously hostile and prosecutorial stance towards the defendant," (Daye's brief to Appellate Division at 24), participated in the examination of the witnesses in a manner that tended to "aid and bolster the prosecution's case," (id. at 9), and conveyed to the jury the impression that he believed Daye was guilty (id. at 14, 24, 34). Citing and quoting numerous portions of the trial transcript to support these assertions, Daye pointed out that "the Bench must be scrupulously free from and above even the appearance or taint of partiality, People v. DeJesus, 42 N.Y.2d 519, 523, 399 N.Y.S.2d 196, 199 [, 369 N.E.2d 752] (1977)." (Id. at 8.) He argued that the trial court had instead "set impartiality aside in favor of the prosecution," (id.), thereby depriving him of his "cardinal" and "fundamental" "right to a fair trial " (id. at 34). In so arguing, Daye did not mention the Constitution or cite any federal cases. The Appellate Division affirmed Daye's conviction without opinion, People v. Daye, 72 A.D.2d 669, 421 N.Y.S.2d 955 (1st Dep't 1979), and leave to appeal to the New York Court of Appeals was denied.
Daye then commenced the present proceeding by filing a petition for a writ of habeas corpus in the district court.*fn2 Again relying on his contentions that the trial judge, by his interrogation of witnesses and his manner of addressing defense counsel, had exhibited partisanship, Daye argued that he had been denied his right to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The state opposed the petition not only on its merits, but also on the ground that Daye had not presented his claim to the state courts in constitutional terms and thus had failed to exhaust his state remedies. Judge Pollack noted that the state court appeal had been prosecuted in terms of the denial of a "fair trial," and he concluded, citing Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979), that even without explicit citation of the Constitution or federal cases, Daye's presentation had been sufficient to alert the state courts that Daye claimed deprivation of his right to a fair and impartial trial under the Sixth and Fourteenth Amendments. Reaching the merits, Judge Pollack dismissed Daye's petition because he concluded that the trial judge's conduct had not deprived Daye of a fair trial. This appeal followed.
On Daye's appeal the state pursued its contention that Daye had failed to exhaust his state court remedies, and a majority of the panel concluded that Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979), compelled a ruling that there had been no exhaustion. Writing for the majority, Judge Newman stated as follows:
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.
663 F.2d at 1156-57; see id. at 1158 (concurring opinion of Metzner, D.J.). Thus, although the majority in the present case saw
[little] 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,
id. at 1157 (opinion of Newman, C.J.); see id. at 1158 (concurring opinion of Metzner, D.J.), it felt constrained on the basis of Johnson to rule that there had been no exhaustion because Daye's state argument had not explicitly referred to federal constitutional standards. Accordingly, the panel affirmed the dismissal of Daye's petition, without prejudice to his commencing a new habeas proceeding after the exhaustion of state court remedies.
Judge Lumbard, in dissent, concluded that the exhaustion requirement had been satisfied because Daye's state appellate brief had "repeatedly argued that the trial judge's questioning 'deprived the defendant of his right to a fair trial,'" and "the New York courts have recognized that this right rests on constitutional and not merely state law grounds. . . ." Id. at 1160. Judge Lumbard found Johnson v. Metz distinguishable because Daye, unlike the petitioners in Johnson, had relied on New York authorities, e.g., People v. DeJesus, supra, that themselves relied on 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.
In light of the importance of having a consistent and workable standard by which the courts of the Circuit may judge whether or not state court remedies have been exhausted, a majority of the active judges of the Court voted for en banc rehearing of the panel's decision, limited to the question of exhaustion. We directed the parties to file additional briefs on this issue and invited them to address the question whether Johnson v. Metz should be overruled.
The federal habeas corpus statute, 28 U.S.C. §§ 2254(b) and (c), embodies the long-established principle that a state prisoner seeking federal habeas review of his conviction ordinarily must first exhaust available state remedies.*fn3 See Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Nelson v. George, 399 U.S. 224, 229, 26 L. Ed. 2d 578, 90 S. Ct. 1963 (1970); Irvin v. Dowd, 359 U.S. 394, 404-05, 3 L. Ed. 2d 900, 79 S. Ct. 825 (1959); Ex parte Hawk, 321 U.S. 114, 88 L. Ed. 572, 64 S. Ct. 448 (1944); Ex parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734 (1886). In general, the exhaustion doctrine provides that a habeas petitioner seeking to upset his state conviction on federal grounds must first have given the state courts a fair opportunity to pass upon his federal claim. Picard v. Connor, supra, 404 U.S. at 275; Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) (per curiam).
The exhaustion requirement springs primarily from considerations of comity. The writ of habeas corpus is designed to provide an efficacious remedy for imprisonment in violation of federal law. See, e.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973). The exhaustion doctrine recognizes that state courts, no less than federal courts, are bound to safeguard the federal rights of state criminal defendants. See Irvin v. Dowd, 359 U.S. 394, 404, 3 L. Ed. 2d 900, 79 S. Ct. 825 (1959); Ex parte Royall, supra, 117 U.S. at 251. The requirement that federal courts not exercise habeas review of a state conviction unless the state courts have had an opportunity to consider and correct any violation of federal law expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions. See Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 102 S. Ct. 18, 70 L. Ed. 2d 1 (1981) (per curiam); Picard v. Connor, supra, 404 U.S. at 275, Darr v. Burford, 339 U.S. 200, 204, 94 L. Ed. 761, 70 S. Ct. 587 (1950); Developments in the Law -- Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1093-94 (1970). In addition to "minimiz[ing] friction between our federal and state systems of justice," Duckworth v. Serrano, supra, 102 S. Ct. at 19, adherence to the exhaustion requirement has the salutary practical effects of enhancing the familiarity of state courts with federal doctrines, Rose v. Lundy, supra, 102 S. Ct. at 1203; Braden v. 30th Judicial Circuit Court, supra, 410 U.S. at 490-91, and of increasing the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious, Rose v. Lundy, supra, 102 S. Ct. at 1203-04.
The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. Wilwording v. Swenson, supra; see also Brown v. Allen, 344 U.S. 443, 447-450, 97 L. Ed. 469, 73 S. Ct. 397 (1953). In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court. See, e.g., Picard v. Connor, supra, 404 U.S. at 276-77; Twitty v. Smith, supra, 614 F.2d at 331. Specifically, he must have set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim. See, e.g., Picard v. Connor, supra, 404 U.S. at 276, 92 S. Ct. at 512; United States ex rel. Cleveland v. Casscles, 479 F.2d 15, 19-20 (2d Cir. 1973); United States ex rel. Rogers v. La Vallee, 463 F.2d 185 (2d Cir. 1972); United States ex rel. Boodie v. Herold, 349 F.2d 372, 374 (2d Cir. 1965).
Likewise, the petitioner must have placed before the state court essentially the same legal doctrine he asserts in his federal petition. See, e.g., Picard v. Connor, supra; Callahan v. Le Fevre, 605 F.2d 70, 72 (2d Cir. 1979); Wilson v. Fogg, 571 F.2d 91, 92-93 (2d Cir. 1978); Fielding v. Le Fevre, 548 F.2d 1102, 1107 (2d Cir. 1977). The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court.*fn4
B. Presentation of Legal Basis
The difficult question in many cases, including the present one, is whether the legal doctrines asserted in state and federal courts are substantially the same. Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts. A defendant may, however, fairly present the substance of a federal constitutional claim to the state court without citing "'book and verse on the federal constitution.'" Picard v. Connor, supra, 404 U.S. at 278 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). The requirement that the state court have been given a reasonable opportunity to pass on the federal habeas claim is satisfied if the legal basis of the claim made in state court was the "substantial equivalent" of that of the habeas claim. Picard v. Connor, supra, 404 U.S. at 278; see also Ulster County Court v. Allen, 442 U.S. 140, 149 n.5, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979); Callahan v. Le Fevre, supra, 605 F.2d at 73-74; Fielding v. Le Fevre, supra, 548 F.2d at 1107; United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 993-94 (2d Cir. 1974). This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.
The courts may be alerted to the constitutional nature of a claim in a number of ways. Even absent a reference to "book and verse" of the Constitution the state court will have notice of the constitutional nature of a claim if, for example, the defendant relies on federal constitutional precedents.*fn5 See, e.g., United States ex rel. Gibbs v. Zelker, supra, 496 F.2d at 994 (intimating that a citation to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), would have alerted state court to the constitutional thrust of defendant's claim). Alternatively, the state court will be alerted to the constitutional nature of a claim if the defendant has claimed the deprivation of a particular right specifically protected by the Constitution. In Twitty v. Smith, supra, for example, the petitioner had claimed a violation of his right to ...