Appeal from a judgment of the United States District Court for the District of Connecticut. Peter C. Dorsey, Judge, see 592 F. Supp. 1538 (1984), dismissing petition for habeas corpus asserting, inter alia, violation of petitioner's Fifth Amendment rights.
Lumbard, Newman, and Kearse, Circuit Judges.
Petitioner William Stepney appeals from a judgment of the United States District Court for the District of Connecticut, Peter C. Dorsey, Judge, dismissing his petition for a writ of habeas corpus, which asserted principally that the admission at trial of his prearrest statement requesting an attorney violated his Fifth Amendment rights. In an opinion reported at 592 F. Supp. 1538 (1984), familiarity with which is assumed, the district court concluded that Stepney was not entitled to habeas corpus relief because he had failed to assert this constitutional claim in the state trial court, resulting in a procedural default, and he had not demonstrated in the district court cause for his noncompliance with the state court procedures or prejudice resulting from the alleged constitutional violation sufficient to excuse the default. On appeal, Stepney argues that federal review of his constitutional claim is not barred as a result of his procedural default because the state appellate court did not reject his claim on that basis and because, in any event, he has shown cause and prejudice sufficient to excuse the default.*fn1 We disagree and affirm the judgment dismissing his habeas petition.
Stepney was charged with murder, pursuant to Conn. Gen. Stat. § 53a-54a, and convicted after a jury trial. He is serving a sentence of twenty-two years to life imprisonment.
A. The State Court Proceedings
At Stepney's trial, two Connecticut State Troopers were called by the prosecutor to testify about their pre-arrest interview of Stepney on May 9, 1979, the day the victim's body was discovered. Stepney's counsel objected on the ground that any statements attributed to Stepney in this testimony would be inadmissible hearsay. Apparently relying on State v. Villafane, 171 Conn. 644, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), in which the Connecticut Supreme Court had stated, obiter, that "to qualify as an admission, a statement made by a party must be inconsistent with a position which he takes at trial," id. at 674, 372 A.2d at 97-98, Stepney's counsel argued that Stepney's statements to the state troopers did not qualify as admissions because they were not inconsistent with any position Stepney had taken at trial. Stepney's counsel stressed the evidentiary nature of his objection to the police officer's testimony:
I'm dealing here with a pure evidentiary question and the rules of court and not any constitutional claim.
592 F. Supp. at 1540 (quoting transcript). The court overruled the objection.
Trooper James Cavanaugh then testified about the prearrest interview with Stepney at the Litchfield State Police Barracks. Toward the end of the prosecutor's direct examination of Cavanaugh, the following testimony was given:
A: I asked him again to recall where the -- where he had left the beer can and, again, he said he didn't know and I just said to him, "What would you say if I told you that there was an eight ounce beer can found next to the victim's body?" and Mr. Stepney said to me, "Well, after she had finished her drink she wanted a beer, so I went out to my truck and I got her a can of beer," and I said something to the effect, "Well that doesn't make sense to me, that what I know about the victim, she was a liquor drinker and seeing as she had a bottle of liquor there, why would she want a beer?" And at ...