MacIo Ennis v. E. Lefevre, Superintendent, Clinton Correctional Facility, Respondent

560 F.2d 1072, 1977 U.S. App. LEXIS 12082

• Court: Court of Appeals for the Second Circuit
• Decided: August 9, 1977
• Docket: 945, Docket 76-2155
• Status: Published

Opinions

MESKILL, Circuit Judge:

Petitioner, Macio Ennis, appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying his application, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. The issues raised on appeal relate to petitioner’s inability to obtain a transcript of the minutes of a Wade¹ hearing for use in connection with the direct appeal of his criminal conviction in state court.

Facts.

On January 30, 1973, Bertha Reed was sitting in the laundry room of her Brooklyn, New York, apartment building, waiting for her laundry to dry, when a man approached her from behind, put his hand around her neck and held a straight razor close to her face. The assailant forced her into an adjacent incinerator room where he forced her to close the door, turn off the lights and undress. While Miss Reed was undressing, the man made two remarks which left little doubt concerning his intentions. Fortunately, the superintendent of the building happened by and interrupted the crime by opening the door. The man fled, and when he did so Miss Reed caught a glimpse of his face. She recognized him as an individual whom she had seen in the building elevator earlier that day. At trial in the Kings County Supreme Court, Miss Reed identified petitioner as the man who had attacked her. She also testified that she had identified petitioner on two occasions prior to trial. The first occurred while she was in the hospital for reasons unrelated to this case. A police detective showed her a photographic spread from which she selected a picture of petitioner. The second occurred in the Brooklyn Criminal Courthouse when, at the request of a police detective, Miss Reed walked into a courtroom where the petitioner was present.² She identified the petitioner as her assailant. Apparently the recognition was mutual, for when the petitioner saw Miss Reed he left the courtroom. A jury convicted the petition of second degree kidnapping, N.Y. Penal Law § 135.20, and he was sentenced to an indeterminate term of imprisonment of from five to fifteen years.

Petitioner appealed to the Appellate Division of the New York State Supreme Court, Second Department. Because he was indigent, the petitioner was provided with assigned counsel under N.Y. County Law art. 18-B. In accordance with N.Y.Crim. Proc.Law § 460.70, petitioner was also provided with a free copy of the transcript of his trial. For some reason, it did not contain the minutes of the Wade hearing which had been conducted during the morning of the first day of trial. The minutes of that hearing were in fact available for transcription.

When petitioner, who was incarcerated at the time, noticed that the transcript was incomplete, he contacted both his assigned counsel and the official court reporter for the Kings County Supreme Court. The record does not reveal what counsel’s response was, but it is clear that he never obtained the minutes in question. The court reporter’s written response was as follows:

Mr. Ennis, I am in receipt of your letter in reference to a hearing that took place during your trial. But, you have not given me the dates or the witnesses. I know that there was a hearing and I can remember what happened, but I don’t know exactly what you want. I am willing to get you the minutes if you give me more specifics on it. Also you have not indicated how you wish this to payed [sic] for. Are you asking for them as a part of your appeal? If so, please give me the necessary forms to pay for the minutes. If you are going to pay for them privately, please notify me of this.

The record discloses no further communications between petitioner and the court reporter. Petitioner also moved, in the Appellate Division, for the replacement of his assigned counsel. Counsel filed an affidavit in which he said he had no objection to being relieved, and in which he complained that petitioner “constantly seeks to direct all legal proceeding [sic].” The motion was denied.

Petitioner filed a pro se supplemental brief in the Appellate Division. He argued that the absence of the Wade minutes denied him adequate appellate review. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); cf. People v. Pitts, 46 A.D.2d 745, 360 N.Y.S.2d 668 (1st Dept. 1974) (denial of indigent’s application for Wade and suppression hearing minutes for use at trial entitled him to new trial).

The Appellate Division did not deal with petitioner’s pro se arguments. Instead, it focused on the single issue pressed by his appointed counsel. The court held that under the merger doctrine of People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967), petitioner’s conviction for second degree kidnapping could not stand because the evidence showed only that Miss Reed’s detention was incidental to the commission of the crimes of attempted rape and sexual misconduct, crimes with which petitioner was not charged. The court modified the judgment of conviction by reducing it to the lesser included offense of unlawful imprisonment in the first degree, N.Y. Penal Law § 135.10, and the case was remanded for resentencing. People v. Ennis, 50 A.D.2d 935, 377 N.Y.S.2d 600 (2d Dept. 1975).

Prior to resentencing, petitioner, proceeding pro se, sought leave to reargue the appeal based on the failure of the State to supply him with the Wade minutes. After he was resentenced to four years imprisonment, the State, without addressing the merits of the Wade issue, opposed his motion on the ground that the issue had been waived as a result of petitioner’s failure to raise it prior to the appeal. The Appellate Division denied leave to reargue, and the New York Court of Appeals subsequently denied leave to appeal.

Petitioner, again proceeding pro se, then filed a § 2254 motion in the Eastern District. Two of his claims are relevant on this appeal. First, he claims that the State’s failure to provide him with the Wade minutes denied him adequate appellate review. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Second, he claims that he was denied the effective assistance of counsel.³

The district court held that the absence of the Wade minutes from the state court record on petitioner’s direct appeal was attributable to his own failure properly to request them, and not to any unlawful action by the State. The court also rejected petitioner’s claim of ineffective assistance of counsel, citing counsel’s success in obtaining for petitioner a modification of his judgment of conviction. This Court appointed the Legal Aid Society to represent petitioner on appeal.

Discussion.

The federal Constitution does not require the states to provide for appellate review of criminal convictions. When a state does so, however, it has a duty “to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974). For over twenty years, that duty has included an obligation to provide trial transcripts, or an acceptable substitute, to appellants who are unable to pay for them. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The transcript thus provided must afford “a ‘record of sufficient completeness’ to permit proper consideration of [the indigent’s] claims.” Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 781, 9 L.Ed.2d 899 (1963), quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The State of New York has undertaken to discharge its duty by automatically providing indigents with transcripts of the minutes of trial court proceedings for the purpose of both civil and criminal appeals. N.Y.C.P.L.R. 1102; N.Y.Crim.Proc.Law § 460.70.

Thus, it is clear that as a matter of both state statutory law and federal constitutional law, petitioner had a right to be provided with the minutes of his Wade hearing. The failure of the State to provide them, however, would be harmless error if they were irrelevant to the claims presented by petitioner on appeal. This is so because the right to a “record of sufficient completeness” does not exist in the abstract; rather, it exists in order to ensure that the accused will have an adequate opportunity to present specific, individual claims. In the instant case, only one issue was raised on petitioner’s direct appeal, namely, the merger issue urged successfully by his lawyer. No issue of identification was raised, and consequently the Wade minutes were wholly unnecessary to permit a proper consideration of petitioner’s claim.

Petitioner’s real complaint is that, despite his requests, his appointed counsel failed to raise the issue of identification, or even to pursue it by studying the Wade minutes. Petitioner’s claim that the State denied him the Wade minutes is in reality a claim that the State should have considered his identification claim, notwithstanding his lawyer’s failure to raise it. This theory appears to be based on the mistaken notion that, even after petitioner’s own lawyer ignored his request that the identification issue be raised, the State remained obligated to comply with his requests for the Wade minutes and to consider his supplemental pro se brief.

There is certainly a right to appear pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), as well as a right to appointed counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). “Obviously, however, those rights cannot be both exercised at the same time.” United States v. Mitchell, 137 F.2d 1006, 1010, aff’d on rehearing, 138 F.2d 831 (2d Cir. 1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944); see United States v. Wolfish, 525 F.2d 457, 462-63 & n. 2 (2d Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).⁴ A defendant who elects to be represented by counsel surrenders the right to make the ultimate decision on a wide variety of matters. See ABA Standards Relating to the Defense Function § 5.2. The courts have increasingly come to recognize that a lawyer’s decisions, at least on those subjects for which he bears the ultimate responsibility, will ordinarily be binding, even though important constitutional rights may be lost. See Wainwright v. Sykes,-U.S.-, 97 S.Ct. 2497, 53 L.Ed.2d 594 n. 14 (1977); id. -U.S. at-, 97 S.Ct. 2497 (Burger C. J., concurring); id.-U.S. at-& nn. 1-2, 97 S.Ct. 2497 & nn. 1-2 (Stevens, J., concurring); see Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); cf. Henry v. Mississippi, 379 U.S. 443, 451-52, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). See also Kibbe v. Henderson, 534 F.2d 493, 496-97 (2d Cir. 1976), rev’d on other grounds, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), and eases cited therein. While all would agree that the decision whether to take an appeal from a criminal conviction is a critical one committed ultimately to the defendant himself, decisions concerning which legal issues will be urged on appeal are uniquely within the lawyer’s skill and competence, and their resolution is ultimately left to his judgment. See United States ex rel. Brown v. Warden, 417 F.Supp. 970, 973 (N.D.Ill.1976). Thus, petitioner was bound by his lawyer’s decision not to press the identification issue, and therefore the failure of the State to provide him with the minutes of his Wade hearing must be regarded as harmless error.⁵

Of course, if counsel failed to press an argument that had obvious merit, United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2d Cir. 1967); or if he failed to act as an advocate on petitioner’s behalf, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); or if counsel failed to obtain an adequate record, Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967); or if he failed to make a conscientious investigation, United States ex rel. Brown v. Warden, supra, 417 F.Supp. at 974, then petitioner may have been denied the effective assistance of counsel, and that issue may be raised notwithstanding the otherwise binding nature of the challenged decision made by counsel. See United States ex rel. Machado v. Wilkins, 351 F.2d 892, 895 (2d Cir. 1965), cert. denied, 383 U.S. 916, 86 S.Ct. 908, 15 L.Ed.2d 670 (1966). See also Wainwright v. Sykes, supra, - U.S. at-, 97 S.Ct. 2497 (White, J., concurring); id. at-U.S. at-, 97 S.Ct. 2497 (Brennan, J., dissenting). This brings us to the second issue raised by petitioner on this appeal.

Petitioner contends that he was denied the effective assistance of counsel. At the district court level, this claim focused on (1) the refusal of the Appellate Division to grant his motions for assignment of new counsel, (2) an alleged, but unspecified, conflict of interest, (3) counsel’s alleged ignorance of criminal law, and (4) the allegation that the two-page brief submitted by counsel relied solely on research done by petitioner. The district judge rejected these claims and denied petitioner a certificate of probable cause. On appeal,⁶ the focus of petitioner’s claim has shifted. He now claims that the failure of counsel to obtain the Wade minutes amounts to incompetence. We do not reach the merits of this issue, for it does not appear from the record that petitioner has ever presented it, or indeed any issue relating to the lack of effective assistance of counsel, to the state courts. This failure to exhaust available state remedies precludes federal habeas corpus relief. 28 U.S.C. § 2254(b) & (c).

The denial of the petition is affirmed.

1 . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

2 . According to Miss Reed’s testimony at the Wade hearing, petitioner was one of “many” individuals in the courtroom.

3 . The district court granted a certificate of probable cause with respect to the Griffin claim, but denied a certificate with respect to the claim of ineffective assistance of counsel. By order dated March 14, 1977, Judge Gurfein granted petitioner’s motion for a certificate of probable cause as to the latter claim.

4 . The rationale underlying this rule was aptly described by petitioner’s appellate counsel who, in explaining to the Appellate Division why he had no objection to being replaced as counsel on appeal, said “there should not be two captains on a ship.”

5 . After oral argument in this case, the State provided this Court with one copy of the transcript of the Wade minutes. Although we have examined its contents, we have not relied upon it in arriving at this decision. Based upon our review of the minutes, however, we believe that allowing petitioner to examine them, along with the transcript of Justice Koota’s oral opinion, may well persuade him that further proceedings will prove fruitless.

6 . See note 3, supra.