Keith Gayle v. Eugene Lefevre, Superintendent, Clinton Correctional Facility

613 F.2d 21, 1980 U.S. App. LEXIS 21403

• Court: Court of Appeals for the Second Circuit
• Decided: January 11, 1980
• Docket: 850, Docket 78-2158
• Status: Published

Opinions

PIERCE, District Judge:

The appellant, a prisoner, appeals from the dismissal of his pro se application for a writ of habeas corpus by the District Court for the Eastern District of New York (Hon. Edward R. Neaher, Judge). Appellant was convicted of murder in the second degree after a jury trial in Supreme Court, Kings County. The conviction was affirmed by the Appellate Division, Second Department, without opinion, on December 13, 1976, and leave to appeal to the New York Court of Appeals was denied on January 24, 1977.

The habeas corpus proceeding was begun on April 5, 1977. The appellant’s pro se application was dismissed by the District Court without a hearing by Memorandum Order dated September 14, 1978. In his petition, appellant contended that the trial judge engaged in biased conduct during the course of the trial, thereby depriving appellant of a fair trial. He also contended that the trial court erred when it denied his motion to suppress certain post-arrest statements made by appellant since he asserts he had not been properly informed of his constitutional rights prior to being interrogated.

Because we find that petitioner has not exhausted the state remedies available to him, we do not reach the merits of petitioner’s claim. The decision of the court below is affirmed.

The threshold issue presented here is whether the requirement of exhaustion of the remedies available in state court set forth in Title 28, United States Code, Section 2254(b), has been met by this appellant. See Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).¹

There is no dispute that appellant, with the assistance of counsel, presented to the state appellate courts, inter alia, his claim that the conduct of the trial judge deprived him of a fair trial (p. 16, Point I, Brief for Defendant-Appellant, Appellate Division, Second Department) and his claim that his post-arrest statements should have been suppressed (p. 36, Point II). However, an examination of the appellant’s brief in the Appellate Division reveals that federal constitutional claims, as such, were not raised in that court.² Such claims were expressly raised for the first time in the present petition for a writ of habeas corpus.

In Johnson v. Metz, 609 F.2d 1052, at 1054 (2d Cir. 1979), this Court, presented with similar circumstances, reaffirmed the standard applicable here, a standard enunciated by prior decisions with respect to the issue of exhaustion of state remedies in actions involving a variety of claims. In Johnson, the appellant had asserted a claim in the state appellate courts that the trial judge, by prejudicial conduct and constant interference, had denied appellant a fair and impartial trial. Appellant had not, however, expressly asserted a claim regarding his federal constitutional rights.

As stated therein by Judge Gurfein: In Johnson, this Court found that considerations of “federalism . . . as a basis for the doctrine of exhaustion of state remedies [are] particularly cogent in cases such as this where the conduct of the state trial judge is at issue.” Id. at 1055. The conclusion of the Court was that “[o]n the basis of precedent, therefore, the construction by this circuit of the meaning of the exhaustion doctrine leads us to conclude that the New York courts have never been given an opportunity to consider the really serious question of whether the pervasive conduct of the trial judge in this case amounted to a violation of federal constitutional due process.” Id. at 1055.

“The question of fair trial in relation to the overall conduct of the trial judge has in the past been stated in terms of either state law or the supervisory power of the particular court. In the absence of a claim of a federal constitutional violation, we must consider whether the New York appellate courts had a fair opportunity to consider the conduct of the trial judge in this case as violating fundamental rights guaranteed by the federal Constitution.” Id.3

Presented with the same issue in the instant case, we similarly hold that the federal constitutional issues, raised as such by appellant for the first time in federal court, have not been presented to the state courts for appellate review and, therefore, appellant has failed to meet the exhaustion requirement of section 2254(b), Title 28, United States Code.⁴ Therefore, we decline at this time to address the merits of petitioner’s application.

Affirmed.

1 . The question of exhaustion of remedies was not presented by the state’s counsel and was not addressed by the District Court. However, the issue may be considered by this Court even if it was not raised in the District Court or by either party in this appeal. Wilson v. Fogg, 571 F.2d 91, 94 & n.5 (2d Cir. 1978); United States ex rel. Johnson v. Vincent, 507 F.2d 1309, 1312 (2d Cir. 1974), cert. denied, 420 U.S. 994, 95 S.Ct. 1435, 43 L.Ed.2d 678 (1975). We find that in spite of the failure of the state to raise the issue below, this Court should require strict compliance with the exhaustion doctrine in this case in the interest of comity particularly where the conduct of a state court trial judge has been questioned.

2 . A passing comment in appellant’s brief submitted to the Appellate Division to the “unconstitutionally conducted interrogation,” was the only explicit reference by appellant concerning his constitutional rights in the entire forty-one page submission. This brief reference does not suffice to show that the state courts were presented “with the same claim [urged] upon the federal Courts.” Picard v. Connor, supra, 404 U.S. at p. 276, 92 S.Ct. at p. 512 (emphasis added).

3 . Under section 470.15(3) of the New York Criminal Procedure Law, the state intermediate appellate court may reverse or modify a judgment as a matter of discretion in the interest of justice. The state appellate courts have reversed criminal convictions because of unwarranted intrusions of the trial judge during trial in the interest of justice and as a matter of discretion. E. g., People v. Harrison, 51 A.D.2d 589, 378 N.Y.S.2d 777 (2d Dep’t 1976); People v. Richburg, 47 A.D.2d 909, 366 N.Y.S.2d 225 (2d Dep’t 1975). Such discretionary determinations are apparently not dictated by constitutional considerations, but rather constitute exercises of the appellate court’s supervisory powers.

4 . For a discussion of unresolved issues relating to section 440.10(2)(c) of the New York Criminal Procedure Law, see Johnson v. Metz, supra at 1055-1056.