Appeal from a judgment of the District Court for the Eastern District of New York (Edward R. Neaher, Judge) granting a writ of habeas corpus brought to challenge state court convictions on the ground of excessive and prejudicial intervention by the trial judge.
Kaufman, Newman, and Davis,*fn* Circuit Judges.
This is, we trust, the final chapter in a saga that well illustrates the difficulties of according due recognition to the prerogatives of state courts when state prisoners seek to vindicate their constitutional rights by seeking a federal writ of habeas corpus. A visitor from another country, even most citizens of this country, would scarely believe the procedural history of this case. As the patient reader will discover, there is now presented for decision by this Court the substantive issue whether the conduct of the state judge who presided at the trial of petitioners Jesse Johnson and Cynthia Hall in 1973 exceeded the bounds of fairness mandated by the Due Process Clause of the Fourteenth Amendment, an issue first sought to be presented to this Court in 1979. Even now, eleven years after the trial and five years after petitioners first brought their claim to this Court, the prosecutors representing the State of New York urge us not to rule on the merits of the claim, suggesting that the claim has been brought either too soon or too late. For the reasons that follow, we conclude that this is the time to decide the merits and that the conduct of the state court trial judge, though disquieting in several respects, did not transgress constitutional standards.
Johnson and Hall were convicted in 1973 after a jury trial in New York State Supreme Court (Aaron Koota, Justice) on charges of criminal possession and sale of heroin. The Appellate Division affirmed without opinion, 46 A.D.2d 739, 361 N.Y.S.2d 325 (2d Dep't 1974), leave to appeal to the New York Court of Appeals was denied on February 4, 1975, and the United States Supreme Court denied certiorari, 422 U.S. 1048, 95 S. Ct. 2666, 45 L. Ed. 2d 700 (1975). In 1976 petitioners filed a petition for a writ of habeas corpus in the District Court for the Eastern District of New York. Ultimately a hearing was held, and on February 5, 1979, the District Court (Edward R. Neaher, Judge) granted the writ. Johnson v. Metz, No. 76-442 (E.D.N.Y. 1979), reprinted in Johnson v. Scully, 563 F. Supp. 851, 860-876 (Appx. A) (E.D.N.Y. 1982). In a carefully considered opinion Judge Neaher concluded, from his examination of the state court trial transcript, that the trial judge "so far exceeded his permissible role" as to deny petitioners "a fundamental element of due process." Id. at 873.
Upon the State's appeal, this Court reversed, accepting the prosecutor's argument that petitioners had failed adequately to exhaust their state court remedies. Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979) (Johnson I). We ruled that the claim of prejudicial conduct by the trial judge had been presented to the state appellate courts as a violation of state law or a matter calling for the exercise of the state courts' exercise of their supervisory power, rather than as a violation of the federal Constitution. Though petitioners had specifically called to the attention of the state courts the instances of conduct by the trial judge that they claimed were fundamentally unfair, we ruled their papers insufficient to alert the state courts to the federal nature of their complaint. Writing the principal opinion for the panel, Judge Gurfein recognized the potential problem presented by section 440.10(2)(c) of the New York Criminal Procedure Law (McKinney 1971), which requires a state court judge to deny a motion to vacate a judgment of conviction sought on an issue that a defendant unjustifiably failed to raise on direct appeal, if the record underlying the judgment contained sufficient facts to have permitted adequate review of the issue. Noting uncertainties concerning the construction New York courts would give this provision, Judge Gurfein wrote, "It is difficult for this panel to believe, however, that no post-conviction remedy whatever will be available by way of state collateral relief when a serious federal constitutional issue is involved." 609 F.2d at 1056. The writer of this opinion concurred, expressing the view that petitioners' claim was being returned "for what will surely be sensitive examination by the state courts." Id. at 1057 (Newman, J., concurring).
Petitioners then filed in the New York Supreme Court a motion to vacate their convictions, pursuant to N.Y.C.P.L. § 440.10. The motion was denied solely on the procedural ground that petitioners had failed to raise their claim as a federal claim on their original direct appeal. Leave to appeal from that ruling was denied.
Petitioners returned to the District Court, no doubt confident that their second attempt to secure relief from the state courts would overcome the exhaustion barrier to the federal courthouse and entitle them to a ruling on the merits. The District Court, with evident reluctance, rejected their claim on procedural grounds. Johnson v. Scully, No. 81-8163 (E.D.N.Y. June 25, 1982), reprinted in Johnson v. Scully, supra, 563 F. Supp. at 881-82 (Appx. C). Relying on Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 68 L. Ed. 2d 204, 101 S. Ct. 1710 (1981), the Court ruled that petitioners' failure to raise a federal claim on their direct appeal from their conviction amounted to a forfeiture of that claim under the rule of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), and that no "cause" had been shown that would warrant relief from that forfeiture. The Court felt constrained to rule that the federal claim had not been presented on direct appeal, not only by our prior decision in Johnson I but also by the subsequent decision in Daye v. Attorney General, 663 F.2d 1155 (2d Cir. 1981) (Daye I).
Thereafter, this Court reconsidered Daye I en banc and announced a somewhat more relaxed standard for determining what constitutes an adequate presentation of a federal claim to a state court to satisfy exhausation requirements. Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc) (Daye II). Upon petitioners' appeal of the District Court's ruling dismissing their petition on forfeiture grounds, a panel of this Court remanded for reconsideration by the District Court in light of Daye II. Johnson v. Scully, 714 F.2d 114 (2d Cir. 1982) (table). Upon remand, Judge Neaher found that, under the standards of Daye II, petitioners had, after all, adequately presented their federal claim on their original state court direct appeal to satisfy exhaustion of state court remedies. Johnson v. Scully, supra, 563 F. Supp. at 852-59. The District Judge noted, id. at 859, that petitioners were confining their habeas corpus petition solely to the claim that the state trial judge's conduct had denied them a fair trial, and that other claims presented in their petition had been withdrawn, thereby satisfying the requirements of Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). See Rock v. Coombe, 694 F.2d 908, 914 (2d Cir. 1982), cert. denied, 460 U.S. 1083, 103 S. Ct. 1773, 76 L. Ed. 2d 345 (1983). Judge Neaher then reached the merits of the due process claim and reaffirmed his view that a fair trial had been denied, for the reasons set forth in his 1979 decision. Johnson v. Scully, supra, 563 F. Supp. at 859-60. Petitioners were ordered released unless the State elected to retry them. Johnson remains in custody pursuant to a federal conviction obtained in 1978. Hall is at liberty on parole, her sentence of fifteen years to life having been commuted.
In pressing its appeal, the State asserts that petitioners did not adequately present their due process claim on their original direct appeal of their convictions to satisfy exhaustion requirements and that their failure to do so works a forfeiture under Wainwright v. Sykes, supra. The State acknowledges, however, that under the principles set forth in Daye II petitioners' state court remedies had been exhausted; its dispute is with the standards enunciated by the en banc court. We agree with Judge Neaher that state court remedies had been exhausted on petitioners' original state court direct appeal, according to the standards of Daye II. We therefore need not consider the State's contention that if a claim is presented to a state court on direct appeal but not then sufficiently identified as a federal claim to satisfy the exhaustion requirement, it is forfeited unless the "cause" and "prejudice" test of Sykes is met. We can safely leave for another day whether we are required to apply the forfeiture rule that strictly. We therefore come, at last, to the merits.
The conviction of petitioners stemmed from an uncomplicated transaction in which Johnson, apparently with Hall's assistance, sold three-quarters of a kilo of heroin to an undercover police officer for $23,000. A police informant introducted the undercover officer to Johnson, who agreed to make the sale. Subsequently the officer met Johnson, showed him $23,000 contained in a green knapsack, and placed the knapsack in Johnson's car. Johnson was observed driving to an apartment house that he sometimes shared with Hall, his girl friend. Johnson was observed entering the building with a brown paper bag and, shortly thereafter, coming out accompanied by Hall, who carried the green knapsack over her shoulder. Hall disputed that she carried the knapsack from the building, but conceded that Johnson gave it to her in the car. She testified that Johnson told her to wait at the Centaur Bar, a neighborhood tavern, and give the knapsack to the informant, who she knew as Pete Knight. Hall complied, and the knapsack was retrieved by Knight and an undercover policewoman, who brought it to Johnson's customer, the undercover officer. The knapsack, which had contained the $23,000, now contained two packages of heroin.
At trial Johnson, who did not testify, endeavored to assert that he was not selling to the undercover officer but only acting as his buying agent, and also that he was the victim of entrapment. Hall ...