Appeal from a judgment of the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, denying appellant's petition for a writ of habeas corpus. Vacated and remanded with instructions to dismiss for failure to exhaust state remedies.
Kaufman, Meskill and Pierce, Circuit Judges.
Appellant Campanale appeals from a judgment, filed March 30, 1981, of the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, denying Campanale's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, we vacate the order denying the petition and we remand the cause to the district court with instructions to dismiss for failure to exhaust state remedies.
Frank Campanale was convicted of murder in 1969, in New York Supreme Court, Bronx County, after a jury trial. This conviction stemmed from the fatal shooting of Gary Tanzella, a friend of appellant's estranged wife, Gloria Campanale. The shooting occurred at Gloria Campanale's apartment in the Bronx, New York.
Gloria Campanale was the State's principal witness. She testified that at approximately 1:00 a.m. on February 15, 1968, appellant Frank Campanale shot Tanzella in the head. Appellant testified that he did not shoot Tanzella; that he and Gloria became involved in a heated argument during which he and Tanzella scuffled; that he heard a shot; that he saw Tanzella "put his hand up to his head" and "[start] to fall"; and that, as he turned to leave the apartment, he "glanced around, and [he] saw [Gloria] with a gun in her hand."
During cross-examination, the prosecutor sought to impeach appellant's testimony concerning the shooting. The prosecutor elicited that, following the shooting, upon being arrested and informed of his rights, appellant made no statement "about Gloria firing the shot." The questioning of appellant by the prosecutor is set forth in the margin.*fn1 By inquiring about appellant's post-arrest silence, the prosecutor's apparent aim was to impeach the appellant by showing that if his version were true, he would have told the police the same explanation at the time of his arrest rather than remain silent.
The jury found Frank Companale guilty of murder and on February 7, 1969 he was sentenced to a prison term of twenty years to life. Campanale appealed from this conviction asserting in part that the State's use of his post-arrest silence for impeachment purposes was a violation of his constitutional rights under the rule of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The conviction was affirmed without opinion on May 25, 1971, by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied on December 8, 1971. Six years after he was convicted, appellant moved pro se to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1971), and repeated his Miranda argument. The motion was denied by the State Supreme Court in April, 1975. The court refused to entertain appellant's Miranda claim, noting that the impeachment issue had been raised during the direct appeal. On June 17, 1975, the Appellate Division, First Department, denied leave to appeal this decision.
During the following year, the United States Supreme Court held, in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), that cross-examination of a defendant concerning his post-Miranda warning silence for impeachment purposes violates the Due Process clause of the Fourteenth Amendment. Id. at 619. On April 3, 1979, appellant, pro se, filed a petition in the United States District Court for the Southern District of New York seeking habeas corpus relief under 28 U.S.C. § 2254, alleging, among other claims,*fn2 violation of his federal constitutional right to remain silent following arrest and citing Doyle.
The district judge observed that cross-examination of Campanale concerning his post-arrest silence was "constitutionally infirm" in light of Doyle v. Ohio. However, before he reached the merits of appellant's claims, Judge Leval sua sponte raised the question of exhaustion. He recognized that N.Y. Crim. Proc. Law § 440.10(1)(h) provided an available state remedy for appellant's Doyle claim, that appellant had not raised the issue of retroactive application of Doyle in the state courts, and that prior state court consideration was particularly appropriate in this case because it turns in part on issues of state law and policy. Nevertheless, Judge Leval excused appellant's failure to present the Doyle claim to the state courts, holding that "in view of the highly technical nature of the exhaustion considerations and the respondent's failure to raise the issue during the significant amount of time this action has been pending . . . dismissal on exhaustion grounds would be unduly burdensome to the petitioner." Therefore, Judge Leval proceeded to reach the merits of appellant's claim. After reviewing the trial transcript, he concluded that even if Doyle v. Ohio were to be applied retroactively, a proposition he felt was questionable, the challenged cross-examination was harmless error, whereupon he denied Campanale's petition. For the reasons set forth hereinafter, we vacate the district court's order and remand with instructions to dismiss.
Appellant contends that the State's cross-examination concerning his post-arrest silence was constitutionally impermissible under the rule announced by the Supreme Court in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Doyle, however, had not been decided at the time the New York courts ruled on either Campanale's direct appeal or his collateral attack. Consequently, the state courts have not had the opportunity to decide whether Doyle should be applied retroactively in appellant's case and, if so, whether the cross-examination of Campanale was harmless error. The district judge acknowledged these facts, but nevertheless proceeded to the merits in the interest of not unduly burdening the appellant. However, subsequent Supreme Court case ...