Phillips v. Smith, 79 Civ. 1782.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation552 F. Supp. 653
Docket NumberNo. 79 Civ. 1782.,79 Civ. 1782.
PartiesWilliam R. PHILLIPS, Petitioner, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent.
Decision Date24 November 1982

William M. Kunstler, New York City, for petitioner.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, for respondent; Robert Pitler, Asst. Dist. Atty., New York City, of counsel.

MEMORANDUM DECISION

GAGLIARDI, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner William Phillips, a former New York City police officer, was convicted on November 21, 1974 of two counts of murder and one count of attempted murder after a jury trial in New York State Supreme Court, New York County.1 The convictions were affirmed without opinion by the Appellate Division, People v. Phillips, 52 A.D.2d 758, 384 N.Y.S.2d 715 (1st Dept. 1976), and leave to appeal to the Court of Appeals was denied, 39 N.Y.2d 949, 386 N.Y.S.2d 1039, 352 N.E.2d 894 (1976). Petitioner subsequently filed a motion to vacate the judgment in New York State Supreme Court pursuant to N.Y.Crim.Proc.Law § 440.10. Justice Irving Lang denied the motion on January 3, 1979 and leave to appeal to the Appellate Division was denied on February 15, 1979. On reargument, Justice Lang again declined to vacate the judgment of conviction.

On April 5, 1979 petitioner filed the instant petition attacking his convictions on the following grounds: (1) that he was denied his constitutional right to due process in that facts which were known to the prosecution but undisclosed to petitioner purportedly established that two of the jurors were biased; and (2) that the trial court improperly admitted a tape recording of petitioner's allegedly immunized statements to the chief counsel to the Knapp Commission on police corruption. The petition was granted by Judge Pierce, who did not reach the immunity issue, on the ground that one of the jurors was impliedly biased. 485 F.Supp. 1365 (S.D.N.Y.1980). The Court of Appeals affirmed Judge Pierce's decision, 632 F.2d 1019 (2d Cir.1980), but the Supreme Court reversed and reinstated the judgment of conviction, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The case has now been remanded to this court for consideration of petitioner's immunity claim.

Petitioner was a New York City police officer assigned to the 25th Precinct in Manhattan. According to Michael Armstrong, the chief counsel to the Knapp Commission on police corruption, petitioner agreed in 1971 to work as an undercover agent for the Commission and to provide information on police corruption to the Commission in exchange for a grant of immunity. Sometime during the summer of 1971, Armstrong recorded a conversation with petitioner in which petitioner recounted many of his corrupt activities, including his involvement with a pimp and bookmaker named Jimmy Smith who had been murdered in 1968. Petitioner stated in that conversation that he had extorted approximately $1500 from Smith, and then had put Smith "on the pad" for $100 a month, i.e., Smith was forced to pay petitioner $100 per month to avoid being arrested for his illegal activities.

Petitioner was indicted in March 1972 for the murders of Smith and a prostitute named Sharon Stango, and for the attempted murder of a Mr. Charles Gonzalez. At trial, petitioner testified that he had extorted $1500 from Smith in 1965, but never received regular payments from Smith thereafter. The prosecutor subsequently introduced petitioner's taped conversation with Armstrong which directly contradicted petitioner's testimony.

Petitioner now claims that the prosecutor's use, to impeach petitioner's testimony, of the allegedly immunized statements on the tape recording deprived petitioner of his federal constitutional rights. It is undisputed that this contention was first raised in petitioner's state court motion to vacate the judgment pursuant to New York Crim. Proc.Law § 440.10, following affirmance of the conviction by the state appellate courts on direct appeal. In adjudicating petitioner's § 440.10 motion, Justice Lang held that under the relevant state procedural rules, petitioner's claim was barred by his failure to raise the claim at trial in a timely fashion. Justice Lang further held that the claim was untenable on the merits, principally on the ground that the use of the recorded statements only for impeachment purposes was not unlawful even if petitioner in fact had been granted immunity.

On reargument, Justice Lang changed his analysis of the merits in light of the Supreme Court's intervening decision in New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1978), which held that statements given in response to a grant of immunity cannot be used to impeach the testimony of a criminal defendant at trial. However, Justice Lang further held that the use of the recorded statements against petitioner was "harmless error beyond a reasonable doubt." In addition, Justice Lang adhered to his original decision that the immunity claim was barred by petitioner's procedural default.

The State contends that as a result of petitioner's state law procedural default, petitioner has forfeited his immunity claim as a ground for federal habeas relief under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Under Sykes, where the state courts have held that a petitioner's federal claim is forfeited due to noncompliance with state procedural rules, federal habeas relief is also barred "absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation." 433 U.S. at 84; see Klein v. Harris, 667 F.2d 274, 285 (2d Cir.1981). Petitioner contends that Sykes is not applicable where, as in the instant case, the state courts have rejected the federal claim both on state procedural grounds and on the merits. The court first turns to this important threshold issue and then, having concluded that Sykes is applicable, next applies the Sykes cause-and-prejudice analysis to the facts of the instant case.

Sykes and its progeny address the difficult issue of whether state convictions which are premised on state procedural grounds are immune from review in the federal courts. It is clear that where a state court has held that the petitioner's federal claim is forfeited due to a procedural default and therefore has refused to hear the federal claim, the availability of federal habeas relief is governed by the cause-and-prejudice analysis set forth in Sykes. Klein v. Harris, 667 F.2d 274, 284-85 (2d Cir.1981). It is also true that where a New York State appellate court affirms a conviction without opinion, and both procedural and substantive grounds supporting the conviction were argued to that court by the prosecution, the federal habeas court must presume that the state court decision was premised on the procedural default and that Sykes is therefore applicable. Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.1982). On the other hand, since there is "no warrant ... for guarding state procedural rules more vigilantly than the State itself does," Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982), Sykes does not bar federal habeas relief merely upon a showing that an adequate state procedural ground was available to support the conviction; there must be a demonstration that the state courts expressly or impliedly relied on the procedural default. See Klein, supra, 667 F.2d at 285.

The precise issue now before the court, i.e., whether Sykes is applicable when the state court expressly relied on both a procedural bar and the merits of the underlying claim, has yet to be addressed by the Second Circuit and has divided the Courts of Appeals that have addressed the issue. Several courts have held that Sykes does not apply unless the state courts exclusively relied on the procedural default. See Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir.1982); Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir.1981); Bradford v. Stone, 594 F.2d 1294, 1296 n. 2 (9th Cir.1979). The Sixth Circuit has held that Sykes is applicable so long as the procedural default was a "substantial basis" of the state court's decision, Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981), and the Eighth Circuit has held that Sykes is applicable at least where the decision on the merits may be construed to be dicta, Dietz v. Solem, 640 F.2d 126, 131-32 n. 1 (8th Cir.1981). Finally, the Third Circuit has recently held that Sykes is applicable whenever the state courts rely on a procedural rule as an alternate holding. United States ex rel. Caruso v. Zelinsky, 689 F.2d...

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3 cases
  • Phillips v. Smith
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 2, 1983
    ...relief based on the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Phillips v. Smith, 552 F.Supp. 653 (S.D.N.Y.1982). William R. Phillips was a New York City police officer when, in 1971, he agreed to cooperate with the Knapp Commission's ......
  • U.S. v. McLain
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 7, 1987
    ...of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982), on remand 552 F.Supp. 653, (S.D.N.Y.1982), aff'd, 717 F.2d 44 (2d Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1287, 79 L.Ed.2d 689 (1984). Although the court eventual......
  • Nichols v. Thomas
    • United States
    • U.S. District Court — Northern District of Georgia
    • February 27, 1992
    ...Cir.1981), cert. granted 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332, rev'd 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78, on remand 552 F.Supp. 653, (D.C.N.Y.), aff'd 717 F.2d 44 (2d Cir.1983), cert. denied 465 U.S. 1027, 104 S.Ct. 1287, 79 L.Ed.2d Although the record does not indicate exist......

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