U.S. ex rel. Buford v. Henderson, 65

• Citation: 524 F.2d 147
• Decision Date: 06 October 1975
• Docket Number: No. 65,D,65
• Parties: UNITED STATES of America ex rel. Carl BUFORD, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility,Respondent-Appellee. ocket 75-2052.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 147

524 F.2d 147

UNITED STATES of America ex rel. Carl BUFORD, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility,Respondent-Appellee.

No. 65, Docket 75-2052.

United States Court of Appeals Second Circuit.

Argued Sept. 3, 1975.

Decided Sept. 25, 1975.

As Amended Oct. 6, 1975.

E. Thomas Boyle, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for petitioner-appellant.

Margery Evans Reifler, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

MANSFIELD, Circuit Judge:

Carl Buford, presently serving a sentence of from 25 years to life at the Auburn Correctional Facility pursuant to his conviction on June 18, 1968, of murder in the second degree after a jury trial in the Rockland County Court, appeals from a denial by the Southern District of New York, Whitman Knapp, Judge, of his petition for writ of habeas corpus brought under 28 U.S.C. §§ 2241 and 2254. We affirm.

In 1967 a Rockland County grand jury filed an indictment charging Buford with the murder of one Yvonne Dove, allegedly his paramour. Following a pretrial hearing upon Buford's motion to suppress oral statements given by him to police at the time of his arrest and certain exhibits introduced before the grand jury (shirt, buttons, photographs of defendant's hand and arm, fingernail scrapings removed by the police at the time of his arrest and a State Police laboratory report), Justice John A. Gallucci of the Rockland County Court found in a detailed decision dated April 10, 1968, which recites the circumstances of Buford's arrest, that Buford volunteered certain self-incriminatory statements to the police before his arrest, that he was thereafter lawfully arrested, fully advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that he then knowingly, intelligently and voluntarily waived these rights. The court further found that the physical evidence taken from Buford at the time of his arrest, including the fingernail scrapings, did not violate his constitutional rights, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

In May 1968 a jury trial resulted in Buford's conviction, which was unanimously affirmed by the Appellate Division, People v. Buford, 37 A.D.2d 38, 324 N.Y.S.2d 100 (2d Dept. 1971). Leave to appeal to the Court of Appeals was denied on September 28, 1971. Represented by counsel, petitioner thereafter instituted state habeas corpus and coram nobis proceedings which were pursued through the Appellate Division, where they were denied. For purposes of prosecuting the direct appeal and the post-trial applications for relief, Buford was furnished with a copy of the trial transcript of approximately 3,000 pages.

On March 7, 1974, petitioner, acting Pro se, filed the present petition in the United States District Court for the Southern District of New York, asserting claims that had been raised in the state courts on his direct appeal and in his post-trial petitions. The federal petition, in somewhat of a blunderbuss-type approach, seeks relief on numerous different grounds which may be summarized as follows:

1. The state trial court improperly admitted incriminatory evidence that either was not connected to Buford or had been taken from him in violation of his Due Process or Equal Protection rights. Petitioner claims that the state improperly introduced fingernail scrapings taken from him before he received Miranda warnings, that the state failed to connect the scrapings or other evidence (bits of teeth and hair-like matter) to him or to the deceased, and that the corpus delicti and cause of death were never proven, the evidence of death having been the subject of conflicting and inadmissible expert testimony.

2. The use of circumstantial evidence at the trial to prove disputed facts deprived Buford of his constitutional right to require proof of guilt beyond a reasonable doubt.

3. The Miranda warnings were administered by the police to Buford in such a "hasty and lackadaisical" manner that he did not knowingly and intelligently waive his rights, resulting in the improper admission at trial of incriminatory statements and evidence obtained from him in violation of his constitutional rights.

4. The state suppressed evidence favorable to the defense, consisting of 5. The state court improperly refused to strike certain exhibits that were not connected to the defendant, including photographs or descriptions of the scene of the crime.

a report of a police sergeant to the effect that a young boy had stated that one "John Sinclair" had committed the crime. ¹

6. The evidence was insufficient to convict Buford.

7. The appellate court erroneously permitted the state on appeal to substitute replacement for certain exhibits, including substitutes for Polaroid photographs introduced at trial.

In response to a question appearing on a form of the type furnished to habeas corpus petitioners in the Southern District of New York, Buford advised that he did not have "any additional information" relative to the application because he was "without a copy of the trial transcript." With his petition Buford filed a motion pursuant to 28 U.S.C. §§ 2247, 2249, ² for the production by the Attorney General or by the Rockland County District Attorney of certain records for use by the district court in its hearing on Buford's application, including the state court indictment and the minutes of Buford's arraignment, of the state pretrial hearing, and of the grand jury proceedings, trial and sentencing.

Respondent filed in the district court an affidavit opposing Buford's petition, to which was annexed a copy of the state trial court's decision denying the motion to suppress and the District Attorney's brief on the direct appeal. Thereupon petitioner, after receiving an extension of time to file his traverse, applied pursuant to 28 U.S.C. § 2250 ³ for a copy of the state court trial transcript, which was denied by the district court without prejudice to renewal upon a showing of meritorious cause. Buford then filed his traverse and renewed his § 2250 motion, seeking in addition the minutes of the grand jury proceedings and of the pretrial suppression hearing. In the meantime respondent furnished Buford with some 14 pages of the trial transcript, to which reference had been made in the opposition to the petition. Respondent did not turn over to the Clerk for the Southern District of New York or to Buford the copy of the trial minutes which it had subpoenaed from the state court clerk's office. ⁴ However, during the pendency of this appeal the Attorney General's office loaned a copy of the trial transcript to petitioner's counsel, who had an opportunity to study it before filing his brief.

On November 1, 1974, Judge Knapp filed a memorandum decision and order denying the petition on the merits without a hearing. Four of petitioner's claims were dismissed on the ground that they presented evidentiary questions which did not rise to a constitutional level. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); United States ex rel. Terry v. Henderson, 462 F.2d 1125 (2d Cir. 1972). The claim regarding the taking of fingernail scrapings was dismissed on the ground that under the Supreme Court's decisions in Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Schmerber v. California, supra, and United States v. Wade, supra, the police were not required to give Miranda warnings and that the state court had in any event made a finding, entitled to a presumption of correctness under 28 U.S.C. § 2254(d), ⁵ that Buford had been apprised of and had voluntarily and knowingly waived his Miranda rights before the scrapings were taken. The police report allegedly suppressed was held not to state a constitutional claim since it may well have been inculpatory rather than exculpatory (Buford having used the alias "St. Clair") and in any event petitioner had been advised at trial of the statement and had had an opportunity to examine the police officer who made the report. Petitioner's claim that the Appellate Division's acceptance of substitute exhibits for use on appeal was improper was denied on the ground that, for the reasons stated in People v. Buford, supra, he was not thereby deprived of his right to appeal. From the court's order denying the petition, Buford appeals.

DISCUSSION

Upon this appeal petitioner's sole contention is that the district court erred in denying his petition without first directing that he be provided with copies of the state trial and suppression hearing transcripts for use in preparing his claims and meeting respondent's opposition. He maintains that to sustain his burden he needs to refer the court to relevant portions of the transcript upon which his claims are based and that denial of these tools amounts to a denial of due process rendering access to the federal court illusory. See United States ex rel. Williams v. Zelker, 445 F.2d 451 (2d Cir. 1971); United States ex rel. Ellington v. Conboy, 459 F.2d 76 (2d Cir. 1972). Lack of the transcripts in this case, he argues, was particularly crippling because he could not be expected, some six or seven years after the state court suppression hearing and trial, to recall all of the important details of the lengthy proceedings. He further asserts that the state, in contrast, has had the benefit of a copy of the transcript to which it has referred, citing specific pages, in opposition to his claims.

An indigent defendant's right in a criminal case to a free stenographic trial...