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February 4, 1983

ALLEN MINOR, Petitioner
DAVID HARRIS, as Superintendent, of Taconic Correctional Facility, Respondent

The opinion of the court was delivered by: SOFAER


 ABRAHAM D. SOFAER, District Judge.

 Petitioner, who has served over five years of an indeterminate fifteen year prison sentence for robbery in the second degree, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 (1976). He was convicted on January 5, 1978, in New York Supreme Court, Queens County, of participating, with three other youths, in the robbery of Mr. Harry Landsberg on October 18, 1976. The thieves took Mr. Landsberg's wallet, containing ten dollars, but left him otherwise unharmed. Petitioner appealed his conviction to the Appellate Division of the Supreme Court, Second Department, arguing, inter alia, that the conduct of his trial judge, Justice Aaron F. Goldstein, throughout the trial and in instructing the jury, denied him his constitutional right to a fair trial. On February 11, 1980, the Appellate Division affirmed the conviction without opinion. People v. Minor, 74 A.D.2d 740, 424 N.Y.S.2d 806 (2d Dep't 1980). The New York Court of Appeals denied him leave to appeal on March 21, 1980.

 Petitioner argues that "the entire trial was infected by Justice Goldstein's hostility toward petitioner, his counsel, and the defense case." Pl. Mem. at 12. As he did in appealing within the state system, petitioner divides his claims into two groups: Justice Goldstein's interventions during the evidentiary phase of the trial, and his allegedly prejudicial and unconstitutional jury instructions. *fn1" Petitioner has "exhausted the remedies available in the courts of the State," 28 U.S.C. § 2254(b) (1976), with respect to his claims; he has fairly presented to an appropriate state court the same factual complaints urged here, including in his state court briefs reference to the specific parts of the federal constitution on which he relies -- the right to a fair trial and the right to confront witnesses; and he has appealed on those grounds to the highest state court. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). Petitioner is not entitled to relief, however, because procedural defaults preclude review of some of his claims, and because in any event he has failed to establish a basis for issuing the writ.


 Respondent contends that petitioner has forfeited many of his claims -- all of his objections to the court's charge and some of his objections to events that occurred earlier in the trial -- by failing to object to them during the trial. In New York, as in many jurisdictions, failure to object timely at trial to perceived errors in trial procedure ordinarily precludes appellate review of those alleged errors. N.Y. Crim. Proc. Law § 470.05(2) (McKinney's 1971); see People v. Thomas, 50 N.Y.2d 467, 471, 407 N.E.2d 430, 432, 429 N.Y.S.2d 584, 586 (1982). Principles of comity mandate that federal courts respect state rules that require contemporaneous objections to preserve claims of error. See Wainwright v. Sykes, 433 U.S. 72, 88-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Therefore, where the state appellate courts have declined to review the merits of a claim of error because of a procedural default, a federal court reviewing a § 2254 habeas petition must do the same unless the petitioner can show "cause" for the default and "actual prejudice" resulting from the error. Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); Wainwright, 433 U.S. at 87.

 The fact that a default occurred in state court, however, does not necessarily establish that the state courts relied on the default in rejecting a claim. If the state courts choose to reach the merits, despite the availability of a procedural ground for denying a claim, the federal courts must likewise disregard the default and reach the merits. There is "no warrant . . . for guarding state procedural rules more vigilantly than the State itself does." Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981); see County Court v. Allen, 442 U.S. 140, 147-54, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979).

 These principles failed until recently to provide sufficient guidance for cases in which a default clearly occurred but the state appellate court denied relief without indicating whether it was ruling on the merits or on the default. In this case, as in many others, both the Appellate Division's affirmance and the Court of Appeal's denial of leave to appeal were without opinion. See, e.g., Washington v. Harris, supra, 650 F.2d at 451; Taylor v. Harris, 640 F.2d 1 (2d Cir.), cert. denied, 452 U.S. 942, 101 S. Ct. 3089, 69 L. Ed. 2d 958 (1981); Wright v. Bombard, 638 F.2d 457 (2d Cir. 1980), cert. denied, 450 U.S. 935, 67 L. Ed. 2d 370, 101 S. Ct. 1400 (1981); Alburquerque v. Bara, 628 F.2d 767 (2d Cir. 1980); Callahan v. LeFevre, 605 F.2d 70, 73 n. 6 (2d Cir. 1979). In Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982), the Second Circuit, noting considerable confusion in interpreting state court silence in federal habeas cases, resolved to "state the law on the issue, as we understand it, as it has developed in this circuit." Id. at 54. Martinez established that a District Court must base its interpretation of silence by the Appellate Division on whether the state raised the procedural default on appeal; when the prosecutor has argued only the merits of a claim, an affirmance without opinion will be deemed to have reached the merits; and when the prosecutor relied on the default, even if argued in the alternative, relying also on the merits, an affirmance without opinion must be presumed to be based on the procedural ground. An affirmance under the latter circumstances creates an adequate and independent state ground that precludes federal review absent a showing of cause and actual prejudice. Id.; see Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum. L. Rev. 1050, 1082-88 (1978).

 The Court relied on practical considerations to support its ruling. It recognized that the State cannot easily predict when the Appellate Division will invoke its discretionary interest-of-justice jurisdiction and therefore sought not to place the state at risk when it argues the merits as well as a procedural default by a restrictive interpretation of appellate court silence. It reasoned:

Arguing in the alternative is a well-accepted practice. . . . It therefore makes no sense for us to hold that when a state prosecutor acts as a prudent advocate, he waives any of the alternative grounds that he asserts. Furthermore, we do not believe that the Appellate Division's silence evinces an intent to overlook the procedural error. The interest-of-justice jurisdiction under § 470.15 is not invoked routinely. See, e.g., People v. Robinson, 36 N.Y.2d 224, 228-29, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1975). Therefore, we feel justified in assuming that the Appellate Division does not exercise its discretion under the section and decide a case solely on the merits of a claim, unless it says so.

 675 F.2d at 54 (footnote omitted).

 The assumption required by Martinez marks a necessary refinement in this Circuit's rules governing procedural default. Although the Court stated that it was merely clarifying the law, prior cases articulated less manageable rules of construction. In Klein v. Harris, 667 F.2d 274 (2d Cir. 1981), the Court held that, before a federal court denies habeas review under Wainwright v. Sykes, it must appear "that the state court actually relied upon a procedural default. . . ." Id. at 285 (emphasis in original). It counselled that a District Court, in deciding whether the state court actually relied on a procedural bar, proceed "on a case-by-case basis, upon a consideration of all the relevant indicia." Id. at 285. In other cases the Court also seemed to look to more varied factors and make ad hoc decisions in interpreting state court silence. *fn2" See, e.g., Washington v. Harris, 650 F.2d 447, 451-52 (2d Cir. 1981); Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir. 1981); Callahan v. LeFevre, 605 F.2d 70, 73-74 (2d Cir. 1979). Moreover, while Martinez shifted from these ad hoc evaluations in an opinion that still spoke in terms of "shoulds" and "presumptions", arguably leaving some room for variance from its rule, see, e.g., 675 F.2d at 54 n.6, subsequent Second Circuit opinions leave no doubt as to the appropriateness of its single factor approach. "Under Martinez v. Harris," the Second Circuit recently stated, "a state appellate court's silence [after the state has argued in the alternative] requires a federal habeas corpus court to conclude that the petitioner's claim was rejected by the state appellate court on state law grounds." Johnson v. Harris, 682 F.2d 49, 51 (2d Cir. 1982) (emphasis added); see also Gulliver v. Dalsheim, 687 F.2d 655, 659 (2d Cir. 1982).

 Petitioner has therefore waived those constitutional claims that he failed to raise at trial and that the state contested on procedural grounds on appeal. In particular, petitioner failed to challenge at trial, constitutionally or otherwise, the jury charges delivered by Justice Goldstein. Habeas review of these charges is therefore precluded, although several of petitioner's claims seem meritorious, given the Appellate Division's reversals of many other convictions before Justice Goldstein involving similar charges. See, e.g., People v. Branch, 83 A.D.2d 855, 441 N.Y.S.2d 737 (2d Cir. 1981) (defendant deprived of fair trial by charge that among other things the "question of punishment rests on the shoulders of this Judge. And you can be sure that my shoulders are big enough and broad enough to carry that responsibility."); People v. Abreu, 74 A.D.2d 876, 426 N.Y.S.2d 33 (2d Dep't 1980) (error to tell jury that supplemental reasonable doubt charge was given at defendant's request and to imply to jury that it is their duty to convict); People v. Iskandar, 74 A.D. 2d 880, 426 N.Y.S.2d 24 (2d Dep't 1980) (fair trial denied where judge belabored fact that defendant had motive to lie, suggested criminality of defendant on stand and usurped the role of prosecutor and defense by persistent questioning of witness); People v. Davis, 73 A.D.2d 693, 423 N.Y.S.2d 229 (2d Dep't 1979) (deprivation of fair trial to call defendant "perpetrator" and complainant "victim," and to suggest to jury that defendant was guilty); People v. Vizcaino, 71 A.D.2d 934, 419 N.Y.S.2d 715 (1979) (fair trial denied where judge, among other things, "laced" charge with comments tending to convey to jury court's disbelief of defendant's testimony); People v. Byrdsong, 58 A.D.2d 877, 396 N.Y.S.2d 485 (2d Dep't 1977) (deprivation of fair trial to tell jury that complainant either told truth or lied where issue was identity, and to suggest that to acquit jury would have to disbelieve complainant and two police officers). Petitioner has offered no explanation that would establish cause and excuse this default under Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). His assertion that he was represented by ineffective counsel does not meet the rigid standards for establishing cause. See Dudley v. Dalsheim, 686 F.2d 110, 112 (2d Cir. 1982).

 Petitioner's standing to raise constitutional claims directed at Justice Goldstein's trial intrusions requires closer scrutiny; if objections by trial counsel satisfied New York's contemporaneous objection statute, then standing is preserved and Martinez has no bearing. Section 470.05(2) provides:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

 N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1971). Petitioner's counsel clearly objected to much of the conduct claimed to be prejudicial in this petition. Those claims are therefore preserved. Although clear-cut objections were not made to other aspects of Justice Goldstein's trial conduct, trial counsel's objections were sufficient, under the Second Circuit's treatment of the statute, to have focused the trial court's attention to the problem and thereby to have preserved the claims for review.

 Much of Justice Goldstein's conduct to which the State claims petitioner failed to object involved neither rulings nor instructions, but rather allegedly prejudicial and improper interjections and questions to witnesses. See Petitioner's Mem. of Law at 17-21, 24, 33-36. Other aspects of the judge's conduct intruded on defense counsel's examination of witnesses by, for example, sustaining certain "objections" to petitioner's counsel's questions without an objection actually having been made by the prosecutor. Petitioner preserved his objections to this conduct as a matter of law under the statute. In those instances where counsel did not specifically object to the court's actions -- for example, when Justice Goldstein altered the course of or objected to counsel's cross-examinations -- counsel's adverse position was so well "known to the court" as to telegraph his objections "implicitly." This satisfied § 470.05(2) which requires only that the party make the court aware of its position and does not demand a particular form of protest. As the Supreme Court noted in County Court v. Allen:

New York's cautious contemporaneous-objection policy is . . . carefully limited by several statutory qualifications . . ., the form of the 'protest' is not controlling so long as its substance is clear . . ., such protests may be made 'expressly or impliedly' . . ., [and] once a protest is made, it need not be repeated at each subsequent disposition of the matter.

 442 U.S. 140, 150 n.8, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) (citations omitted).

 The Second Circuit considered the adequacy of contemporaneous objections in Alburquerque v. Bara, 628 F.2d 767 (1980). There, the District Court concluded that petitioner's written "general" objection to the jury selection procedures did not provide the state with sufficient factual support to give proper notice of a constitutional challenge to the New York statute for empaneling juries. Id. at 771-72. The Second Circuit reversed. It held that the New York statute and the policies underlying Wainwright v. Sykes demanded only compliance sufficient "to alert the state to the challenge so as to enable it to respond meaningfully, . . . and further to prevent the necessity of a second trial with its attendant logistical difficulties." Id. at 773 (citations omitted). Petitioner Minor's attorney similarly telegraphed his objections, either implicitly under the attendant circumstances, or expressly, with sufficient concreteness to put the State on notice that petitioner was claiming, or would be led to claim, that he was deprived of a fair trial. As in Alburquerque, "we express no view on what effect a clear and unambiguous state court finding of noncompliance would have upon us; it suffices for present purposes to observe that no reasoned, factually substantiated opinion has ...

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