Appeal from an order of the United States District Court for the Southern District of New York, Gagliardi, J., dismissing William R. Phillips' petition for a writ of habeas corpus based on the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).
Oakes and Meskill, Circuit Judges, and Hill,*fn* District Judge.
In 1974 William R. Phillips was tried and convicted in New York State Supreme Court of two counts of murder and one count of attempted murder. In 1978 he moved to vacate the judgment in state court alleging that his Fifth and Sixth Amendment rights were violated by the admission at trial of allegedly immunized testimony. The state judge denied his motion ruling alternatively that Phillips' claim of immunity was not timely made and that, in any event, the error was harmless. The United States District Court for the Southern District of New York, Gagliardi, J., denied habeas relief based on the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Phillips v. Smith, 552 F. Supp. 653 (S.D.N.Y. 1982).
William R. Phillips was a New York City police officer when, in 1971, he agreed to cooperate with the Knapp Commission's investigation into police corruption. In return, the United States Attorney for the Southern District of New York allegedly agreed to grant Phillips full transactional immunity for all matters which he might disclose. Later that year Phillips testified at televised hearings conducted by the Commission. A detective watching those hearings noted a resemblance between Phillips and composite sketches of a suspect in the 1968 murders of Jimmy Smith, a pimp and bookmaker, and Sharon Stango, a prostitute. Soon thereafter, several of Smith's ex-prostitutes and customers identified Phillips as having been acquainted with Smith. Among them was Charles Gonzalez, an eyewitness to the Smith/Stango murders who had also been shot by the suspect.
Phillips was charged by a New York County grand jury with the Smith/Stango murders and the attempted murder of Gonzalez. His first trial in 1972 ended in a hung jury, 10-2 for acquittal. His second trial began in 1974 in the New York State Supreme Court. During the nine week trial, several witnesses testified that Phillips had been extorting money from Smith for many years prior to 1968 and that shortly before the murders Phillips had threatened to "blow Smith's . . . head off" if he did not pay him $1,000. Gonzalez identified Phillips as the man who shot him, Smith and Stango.
Phillips took the stand, denied having committed the murders and offered an alibi defense. He insisted that he had not extorted money from Smith or visited him since the close of the 1965 college football season. On cross-examination, the government introduced a tape recording made in connection with the Knapp Commission investigation in which Phillips admitted to extorting $100 monthly from Smith after 1965. The defense objected on the ground that it had not been afforded a prior opportunity to hear the entire tape. The court admitted the recorded testimony, but ruled that the defense could challenge the integrity of the recording. The jury found Phillips guilty of the Smith/Stango murders and the attempted murder of Gonzalez.
Phillips moved to vacate the verdict on the ground of jury bias because one of the jurors had a job application pending with the District Attorney's office. This motion was denied and Phillips was sentenced to concurrent terms of 20 and 25 years to life for the murders and 8-1/3 to 25 years for the attempted murder, People v. Phillips, 87 Misc.2d 613, 384 N.Y.S.2d 906 (Sup. Ct. 1975). The Appellate Division affirmed without opinion, People v. Phillips, 52 A.D.2d 758, 384 N.Y.S.2d 715 (1976), and leave to appeal to the Court of Appeals was denied, People v. Phillips, 39 N.Y.2d 949, 386 N.Y.S.2d 1039, 352 N.E.2d 894 (1976).
Two years later, in 1978, Phillips moved in state court pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1971) to vacate his conviction claiming, for the first time, that his recorded testimony introduced at the second trial was covered by transactional immunity allegedly granted by the United States Attorney in connection with the Knapp Commission investigation. The state court denied the motion because Phillips had failed to timely raise his immunity claim in accordance with the New York Criminal Procedure Law. Even if his claim had been timely raised, the court questioned whether a United States Attorney could lawfully immunize Phillips from state prosecution and noted that, in any event, the recording was lawfully used for impeachment purposes. People v. Phillips, 97 Misc.2d 665, 412 N.Y.S.2d 94 (Sup. Ct. 1979). Leave to appeal was denied. On Phillips' motion for reargument, the court held:
This Court denied [Phillips '] motion to vacate on the grounds that his claims of immunity were not timely raised. The court also held, as an alternative ground, that even if defendant had been granted immunity, his recorded testimony was admissible because it was used to impeach him when he took the stand at trial.
Since this court's decision, the Supreme Court of the United States has held, in State of New Jersey v. Portash, [440 U.S. 450, 59 L. Ed. 2d 501, 99 S. Ct. 1292 (1978)] that testimony for which a grant of use immunity is given cannot subsequently be [used] to impeach a witness at trial. Defendant now moves for reargument of his motion to vacate on the grounds that the Portash decision invalidates this court's denial of his motion.
Defendant's motion to reargue is granted, to the extent that this court acknowledges that the Portash decision prohibits immunized testimony from being used to impeach a witness at trial. However, the major thrust of this court's decision in its denial of defendant's motion to vacate was that the defendant's claims of immunity were not timely made. This holding is unaffected by Portash. The court therefore adheres to its original order denying defendant's motion to vacate. Moreover, the court ...