568 F.2d 830 (2nd Cir. 1977), 361, Gates v. Henderson

Docket Nº:361, Docket 76-2065.
Citation:568 F.2d 830
Party Name:Arthur Richard GATES, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee.
Case Date:January 12, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 830

568 F.2d 830 (2nd Cir. 1977)

Arthur Richard GATES, Petitioner-Appellant,

v.

Robert J. HENDERSON, Superintendent, Auburn Correctional

Facility, Respondent-Appellee.

No. 361, Docket 76-2065.

United States Court of Appeals, Second Circuit

January 12, 1977

Argued Oct. 19, 1976.

On Rehearing En Banc, Panel Judgment and Decision Vacated

Aug. 19, 1977.

Certiorari Denied Jan. 16, 1978.

See 98 S.Ct. 775.

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Jesse Berman, New York City, for petitioner-appellant.

Ralph McMurry, Asst. Atty. Gen., State of N.Y., New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Margery E. Reifter, Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

On Rehearing En Banc.

Before KAUFMAN, Chief Judge, and SMITH, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MULLIGAN, Circuit Judge:

The petitioner-appellant Gates appealed from an unreported decision in the United States District Court for the Southern District of New York, Hon. Robert L. Carter, Judge, dated May 27, 1976, which denied without a hearing his habeas corpus application. The district court granted him a

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certificate of probable cause. On appeal a panel of this court, Judge Timbers dissenting, by a 2-1 vote reversed and remanded for an evidentiary hearing. [*] On the suggestion of Robert J. Henderson, Superintendent, Auburn Correctional Facility, respondent-appellee, and at the request of a member of the panel of this court for an en banc poll, we granted rehearing en banc. We vacate the panel judgment and decision, supra, and affirm the order of the district court dismissing the petition for a writ of habeas corpus.

I

At approximately 1:00 a. m. on the morning of September 7, 1966 a policeman, attracted by screaming, entered the Spring Valley, New York apartment of Patricia Gates. He and her upstairs neighbor, Mrs. Mierop, found Patricia Gates mortally wounded by knife stabs, lying on her bed in a pool of blood. She was removed to a hospital and was pronounced dead at 1:20 a. m. Patricia Gates was the estranged wife of the petitioner Arthur Richard Gates, having received a decree of separation from him in June of that year which awarded her custody of their four children. As they left the courthouse petitioner told his wife in the presence of her attorney, "You will never live to enjoy the children. I will see to it myself." The awarding of custody of the children to his wife rankled Gates. Mrs. Mierop was later to testify at his murder trial that two days before the murder she heard Gates tell his wife, "You better enjoy the kids while you have them. You won't have them for long."

At about 1:45 a. m. on the morning of the murder Gates was stopped by a police officer in the business district of Spring Valley for failing to dim his headlights. Upon learning his identity, the officer arrested Gates for assault apparently having received a wanted person bulletin for Gates some ten minutes before. Gates was brought to police headquarters and without protest was fingerprinted and palmprinted.

The investigation of the murder by the police revealed that entrance to Patricia Gates' apartment had been obtained through a bathroom window which had been opened after the screen had been removed. A set of fresh fingerprints was found on the screen so positioned that the prints could have only been made by someone standing outside the first floor apartment and pulling the screen from its place. A palmprint with the fingers pointing into the room was also found on the bathroom windowsill. One fingerprint and one palmprint were positively identified as those of appellant.

Gates was convicted of murder in the first degree in County Court, County of Rockland, New York. On February 14, 1967 Judge Morton B. Silberman sentenced Gates to a mandatory life sentence noting that the jury verdict of premeditated and deliberate murder was fully justified by the evidence. Gates' conviction was affirmed without opinion by the Appellate Division, 29 A.D.2d 843, 288 N.Y.S.2d 862 (2d Dep't 1968) and by a unanimous opinion of the Court of Appeals, 24 N.Y.2d 666, 301 N.Y.S.2d 597, 249 N.E.2d 450 (1969). Chief Judge Fuld in his opinion for the court noted, "The defendant's palm and fingerprints were located on the window through which the murderer apparently entered the house. Such proof, not susceptible of any other explanation, pointed ineluctably to the defendant's guilt and was sufficient to exclude to a moral certainty any other reasonable hypothesis." Id. at 669, 301 N.Y.S.2d at 600, 249 N.E.2d at 451. Gates then applied for a writ of error coram nobis which was denied. People v. Gates, 61 Misc.2d 250, 305 N.Y.S.2d 583 (Rockland County Ct. 1969), aff'd, 36 A.D.2d 761, 319 N.Y.S.2d 569 (2d Dep't 1971), motion for leave to appeal denied (1972).

II

In August 1973 Gates filed a habeas corpus petition in the Southern District of New York raising as the only constitutional issue the lack of probable cause for his

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arrest. Counsel was appointed for him under the Criminal Justice Act. 18 U.S.C. § 3006A. Counsel argued that the taking of Gates' palmprints 1 was in violation of his rights under the Fourth and Fourteenth Amendments since probable cause for his arrest did not exist. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Judge Carter, in denying relief, held that Judge Fuld's opinion had already ruled that the Court of Appeals did not reach the merits of Gates' "fruit of the unlawful arrest" argument since "it was not raised below at all" and that that conclusion had been already upheld "by two courts on state collateral attack." As the district court noted, "The Court of Appeals was merely enforcing procedural requirements under New York law and chose to follow its policy of ignoring claims judged not to have been adequately raised below." Gates v. Henderson, No. 73 Civ. 3865, slip op. at 7-8 (S.D.N.Y. May 27, 1976).

On appeal to this court, a split panel reversed the district court. Judge Oakes, writing for the majority held that counsel's objection to the prints was "ambiguous" and could have been on both Fourth and Fifth Amendment grounds; that under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), which had been decided after Judge Carter's opinion, habeas corpus review of search and seizure claims was foreclosed in the federal court only when the petitioner had an opportunity for full and fair litigation of the Fourth Amendment claims; that petitioner had no such opportunity here since the majority found he had made a Fourth Amendment objection at the trial level which was never considered by the state courts. The majority further concluded that even if no Fourth Amendment objection had been made, under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) the district court could deny federal habeas relief only if Gates had deliberately by-passed state procedures. Gates v. Henderson, supra, 568 F.2d 844 at 850. Judge Timbers dissented.

III

The record of the trial of Gates in the Rockland County Court demonstrates beyond doubt that the objections of his counsel to the taking of the palmprints on September 7, 1966 were on Fifth and Sixth Amendment and not at all on Fourth Amendment grounds. Captain Eisgrau of the Clarkstown Police Department was called as a witness by the state. Mr. Newman, counsel for Gates stipulated outside the presence of the jury that Eisgrau had taken Gates' fingerprints and palmprints. The following colloquy ensued:

The Court: Mr. Newman, you inform me you want to make an objection outside the presence of the jury.

Mr. Newman: Right. As I understand it, the District Attorney is about to introduce into evidence fingerprints which were taken by the present witness, Captain Eisgrau of the Clarkstown Police Department.

Mr. Meehan: Did you say fingerprints?

Mr. Newman: Hand prints, and which were taken at the Clarkstown Police Department on the morning of September 7, 1966. While there is no question, and we will stipulate, that they were taken of the defendant in this case, we raise objection not to the fact that they are or not his prints but to the introduction of those

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prints on the basis that this man's constitutional rights both under the State and Federal Constitution have been violated by the taking of these prints and as such we object to them.

The Court: Your objection is then on constitutional grounds to the mere fact of the taking of the prints?

Mr. Newman: Yes, sir.

The Court: As such?

Mr. Newman: Right, sir.

The Court: I will overrule that objection.

(Emphasis supplied.)

Subsequently, John A. Slater, Identification Officer, Bureau of Criminal Identification, Rockland County Sheriff's office, who also took Gates' prints was called as a witness for the state. Gates' counsel on voir dire outside the presence of the jury made objection to the use of the palmprints taken by Slater and this exchange took place:

The Court: Do you want to be heard on that, Mr. Newman?

Mr. Newman: Other than what I have said, I don't think there is too much further to say. I don't think this defendant has been properly advised of his right prior to the time that this palm print was taken and as such I feel it would be a violation of both the State and federal constitutions to permit this document to be received in evidence at this time.

The testimony is clear, there is no question that no advice of rights was given to the defendant and as such it is prejudicial.

(Emphasis supplied.)

Moreover, Mr. Newman further clarified his constitutional objections of the day before to the Eisgrau palmprinting of Gates:

Mr. Newman: I want the record to...

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