Fielding v. LeFevre

• Decision Date: 19 January 1977
• Docket Number: D,463,Nos. 462,s. 462
• Parties: Brian S. FIELDING, Petitioner-Appellant-Appellee, v. Eugene LeFEVRE, Superintendent of Green Haven Correctional Facility, et al., Respondents-Appellees-Appellants. ockets 76-2089, 76-2094.
• Court: U.S. Court of Appeals — Second Circuit

Page 1102

548 F.2d 1102

Brian S. FIELDING, Petitioner-Appellant-Appellee, v. Eugene LeFEVRE, Superintendent of Green Haven Correctional

Facility, et al., Respondents-Appellees-Appellants.

Nos. 462, 463, Dockets 76-2089, 76-2094.

United States Court of Appeals, Second Circuit.

Argued Nov. 23, 1976.

Decided Jan. 19, 1977.

Jay H. Topkis, New York City (Jack C. Auspitz, Jay L. Himes, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for petitioner-appellant-appellee.

Janet Cunard, Asst. Dist. Atty., White Plains, N. Y. (Carl A. Vergari, Dist. Atty. of Westchester County, White Plains, N. Y., of counsel), Louis J. Lefkowitz, Atty. Gen., Samuel A Hirshowitz, First Asst. Atty. Gen., Ralph Lewis McMurry, Asst. Atty. Gen., New York City, for respondents-appellees-appellants.

Before MANSFIELD, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Brian Fielding, the petitioner in this case, was convicted in the County Court of Westchester County, New York, of seven counts of sodomy in the second degree, N.Y.Penal L. § 130.45 (McKinney 1976), six counts of sexual abuse in the second degree, N.Y.Penal L. § 130.60 (McKinney 1976) and one count of endangering the welfare of a child, N.Y. Penal L. § 260.10 (McKinney 1976). Two consecutive indeterminate sentences of up to seven years were imposed. Upon appeal, the Appellate Division for the Second Department affirmed the conviction, but modified the sentences to run concurrently. This disposition was affirmed by the highest court of New York, the Court of Appeals. People v. Fielding, 39 N.Y.2d 607, 385 N.Y.S.2d 17, 350 N.E.2d 393 (1976). The petitioner then sought a writ of habeas corpus in the Southern District of New York, asserting a denial of rights under the Sixth and Eighth Amendments. After a somewhat unusual proceeding, ¹ the district court denied the petition but granted a certificate of probable cause. We affirm the decision of the district court on the Eighth Amendment question. We decline to reach the merits of the Sixth Amendment claim, inasmuch as we hold that the petitioner has failed to exhaust available state remedies as is required by 28 U.S.C. § 2254.

This case comes to us with a somewhat confused procedural history. Petitioner was indicted in March, 1974, for sexually abusing the members of the "Pop Warner" football team which he coached. The case proceeded in normal fashion until October, 1975, when a judge from Albany County, Hon. John Clyne, was brought in to try the case. This appeal is concerned with the circumstances under which Judge Clyne was called in and his subsequent behavior.

Shortly after entering the case, Judge Clyne sought plea negotiations. He stated that in order for any plea bargain to be acceptable to him, Fielding would have to plead guilty to at least one felony, and that he intended to impose a sentence of imprisonment should defense counsel and the district attorney be able to come to an arrangement. This procedure was entirely proper under New York law. United States ex rel. Selikoff v. Com. of Corr., 524 F.2d 650 (2d Cir. 1975); People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975).

The parties are in dispute as to what subsequently happened. Mr. Vincent Lanna, trial counsel for Fielding, has submitted an affidavit in which he states unequivocally that Judge Clyne said "that the sentence might be more severe" should the defendant proceed to trial. ² This point is disputed directly by the respondents, and implicitly by Judge Clyne, who has also supplied an affidavit in this action. Nevertheless Fielding proceeded to waive a jury and go to trial. ³ Upon overwhelming evidence, he was convicted of seven felonies and seven misdemeanors.

For some time prior to his trial, Fielding had been in intensive psychotherapy. A report from the doctor treating him formed the core of the extensive pre-sentence memorandum submitted to Judge Clyne. In it, Fielding's psychiatrist concluded that his patient had been suffering from pedophilia, and could achieve sexual satisfaction only with young boys. He went on to state that as a result of treatment, Fielding had overcome these urges, and now had a normal sexual orientation. His conclusion was that his patient, if not sent to jail, was unlikely to repeat his crimes, but that imprisonment might well drive him back into pedophilia.

In addition, Fielding underwent interviews with five other psychiatrists. They unanimously agreed that Fielding was "cured" but that further treatment was necessary, and that his condition would deteriorate if he were to be imprisoned. Some also alluded to the harsh treatment meted out to child sex offenders at the hands of other prisoners. In addition, the sentencing memorandum contained a number of character references from friends and neighbors of the defendant. Despite this barrage of recommendations for leniency, Judge Clyne gave Fielding an indeterminate sentence of up to fourteen years.

Prior to trial, defense counsel learned that Judge Clyne had been brought into the case because the administrative judge of Westchester County was the grandfather of one of the complaining witnesses. ⁴ When petitioner learned that Judge Clyne was aware of this, he made a recusal motion but was unsuccessful. Petitioner then began an Article 78 ⁵ proceeding to disqualify Judge Clyne on the ground that his knowledge of the administrative judge's relation to a complaining witness would prejudice him. This application for relief was denied. ⁶

After proceeding through the appellate courts of New York, Fielding began this habeas corpus proceeding. He claimed that Judge Clyne's "threat" was a violation of the Sixth Amendment, and that the sentence imposed constituted cruel and unusual punishment. The writ was denied by the district court after a "remand" to Judge Clyne, and both parties appealed. ⁷ We affirm the denial of the writ.

I. The Sixth Amendment Claim.

Before a state prisoner may present his claim for habeas corpus to a federal court, he is required to exhaust his state remedies, 28 U.S.C. § 2254(b). This is not a formal hurdle placed in the way of meritorious claims, but an essential element of federalism in the administration of criminal justice. The state courts must be afforded an opportunity to set their own Constitutional houses in order before the power of the federal courts is invoked. See Note, Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970). That policy is especially strong when, as here, the conduct of a state judge is sharply and directly called into question. United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124-25 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972). We hold that Fielding failed to present his Sixth Amendment claim to the New York courts, and thus we do not reach the merits of his contention.

The claim under the Sixth Amendment is premised entirely upon Judge Clyne's alleged threat of a more severe sentence should Fielding go to trial. If true, this would establish a per se violation of the defendant's Sixth Amendment right to a trial, and require resentencing before a different judge. See Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1973); Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Stein, 544 F.2d 96, 104 (2d Cir. 1976); Hess v. United States, 496 F.2d 936, 938 (8th Cir. 1974).

However, the affidavit which is the sole basis for this claim is couched in conclusory terms; nowhere is Judge Clyne's actual language set forth. It might well be a zealous advocate's interpretation of an offer of leniency should a guilty plea be entered, which violates no constitutional rights, Santobello v. New York, supra, 404 U.S. at 260-62, 92 S.Ct. 495; in fact, this is an accepted part of New York's criminal procedure, United States ex rel. Selikoff v. Com. of Corr., 524 F.2d 650 (2d Cir. 1975); People v. Nalo, 47 A.D.2d 613, 365 N.Y.S.2d 2 (1975). The respondents alternatively suggest that Judge Clyne was merely stating that, were Fielding to go to trial and be convicted on more than one of the fifty-two counts of the indictment, he might well receive a more severe sentence than on a plea of guilty to a single count. Were this the case, no constitutional violation would be present. On the state of the record, however, we are unable to determine the actual nature of the statements made. Thus, even if this claim were properly before us, we would remand the case for a factual hearing.

In order to meet the exhaustion requirement, a petitioner must have presented his claim to the state courts at least once, on direct or collateral review. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The requirement is not a formality of pleading; the claim must be "fairly presented" to the state courts, with "an opportunity to apply controlling legal principles" to the factual allegations made. Id. at 275, 277, 92 S.Ct. at 513. The constitutional contention made in the federal proceeding need not be identical with the one advanced to the state court, but it must be its "substantial equivalent." As for the alleged violation of the Sixth Amendment, this is simply not such a case.

The main thrust of petitioner's two state appeals was an attack on the harshness of his sentence. Since it was Judge Clyne who had imposed the term of imprisonment, he also contended that Judge Clyne should have been disqualified for bias. What is now presented as a frontal assault by the judge upon the Constitution was merely cited as one bit of evidence showing the prejudice of Judge Clyne throughout the state proceedings. ⁸ At no time was it advanced as part of a claim that Fielding's right to trial was chilled, or that he was sentenced vindictively for persisting in the face of that threat. Since this...