Wilson v. Henderson
| Citation | 742 F.2d 741 |
| Decision Date | 27 August 1984 |
| Docket Number | D,No. 1054,1054 |
| Parties | Joseph Allan WILSON, Petitioner-Appellant, v. Hon. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee. ocket 83-2113. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Ida C. Wurczinger, New York City (Philip S. Weber, New York City, of counsel), for petitioner-appellant.
Jeremy Gutman, Asst. Dist. Atty., New York City (Mario Merola, Dist. Atty., Steven R. Kartagener, Asst. Dist. Atty., New York City, of counsel), for respondent-appellee.
Before TIMBERS, VAN GRAAFEILAND and CARDAMONE, Circuit Judges.
This appeal is from an order that denied habeas corpus relief. Reversing that order and granting petitioner his habeas remedy emphasizes not that a court likes or thinks it wise to reverse a conviction, but rather that a conviction obtained by means that offend constitutional principles may not stand. Here the State's use of a jailhouse informant placed in petitioner's cell by prearrangement to elicit inculpatory information violated his Sixth Amendment right to counsel.
Petitioner Joseph Allan Wilson appeals from a decision of the United States District Court for the Southern District of New York (Gagliardi, J.) that denied his application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Although appellant has been before us on a previous application, Wilson v. Henderson, 584 F.2d 1185 (2d Cir.1978), rehearing denied, 590 F.2d 408 (2d Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 316 (1979), the circumstances of this case require some reiteration of the facts giving rise to his present application.
On July 4, 1970 three individuals committed an armed robbery of the Star Taxicab Garage during which the on duty dispatcher was shot and killed. Three employees identified Wilson as being present on the Star premises. Aware that the police were looking for him, Wilson voluntarily surrendered himself on July 8 and was promptly arrested. After receiving his Miranda warnings, he admitted to Detective Cullen that while looking for his brother on the day in question, he came upon the scene of the crime and witnessed the robbery. Wilson told the detective that he had not been personally involved and fled only because he was afraid of being blamed. Counsel was subsequently assigned him, and he was arraigned on July 9.
Sent to the Bronx House of Detention following his arraignment, Wilson was later moved to a cell that overlooked the Star garage. His cellmate, a prisoner named Benny Lee, had previously agreed to act as an informant. Detective Cullen had instructed Lee to listen "to see if [he] could find out" the identity of the other two perpetrators, but not to "question the man in any way." Immediately upon entering the cell Wilson expressed dismay over the view--"somebody's messing with me because this is the place I'm accused of robbing"--and began to talk to Lee about the robbery. He told Lee that he had seen the robbers commit the crime and picked up some of the money they dropped. Lee commented that Wilson had better come up with a more convincing story.
Wilson subsequently was visited by his brother and learned at that time how upset his family was over the killing. Wilson again became agitated and, when he next spoke to Lee, changed his story. This time appellant admitted that he and his two cohorts had in fact executed the robbery according to plan over the holiday weekend when they knew there would be a lot of money in the garage, and that the victim was shot during the robbery. Lee later reported Wilson's inculpatory statement to Detective Cullen, and gave him pages of secret notations made during his conversations with Wilson.
Subsequently indicted and charged with murder and felonious possession of a weapon, appellant moved to suppress his statements to Lee. Following a Huntley 1 hearing, the state trial court found that Lee did not "interrogate" Wilson, but only listened and made notes. It therefore denied Wilson's motion, concluding that his statements were voluntary and unsolicited. At Wilson's state court trial, the proof of guilt was nearly overwhelming and appellant was convicted by a jury for both crimes. Appeals to New York's intermediate and highest court were unavailing.
After this journey through the New York state courts, Wilson filed a petition for a writ of habeas corpus in the United States District Court, claiming that the admission of Lee's statements violated his constitutional rights. Relying on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the district court rejected this claim, finding that the record did not show any formal interrogation by the undercover agent but only spontaneous statements by Wilson. As noted, we affirmed the district court and refused to grant a rehearing. Certiorari was denied in 1979.
A year later the Supreme Court handed down its decision in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (Henry ). In September 1981 appellant filed a motion in state court to vacate his conviction, arguing that the admission of his statements to Lee was unconstitutional in light of Henry. In denying the motion the state court distinguished Henry on the ground that in that case Henry's cellmate was a paid government agent. The state judge also concluded that Henry was not to be applied retroactively. In January 1982 the Appellate Division denied Wilson's application for leave to appeal.
Having exhausted his state court remedies, Wilson filed a second petition for a writ of habeas corpus in the district court, specifically alleging that his right to counsel had been violated under Henry and that Henry should be applied retroactively. The district court, relying in part on the record of the state court hearing, concluded that Wilson had not been interrogated and that his statements to Lee were spontaneous. On appeal, Wilson argues that the district court erred both in concluding that there was no "deliberate elicitation" of incriminating statements within the meaning of Massiah and Henry, and in deferring to the state court's findings on this issue. Wilson also maintains that Henry formulated a constitutional rule governing an accused's right to counsel and urges us to apply Henry retroactively. The State contends that the legal principles articulated in Henry are no different from those we applied on Wilson's first habeas appeal, and that the ends of justice would not be served by reconsidering the merits of Wilson's petition, even were Henry not distinguishable.
It is well settled that courts may give controlling weight to a denial of a prior application for habeas corpus only if "(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963); United States ex rel. Schnitzler v. Follette, 406 F.2d 319, 321 (2d Cir.), cert. denied, 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969).
The State urges that there must be an end to litigation on Wilson's claim. This argument will hardly halt the inexorable rising and falling of the legal tides. A look at the long and tortured history of Henry itself as it also slowly wended its way through the court system until its final resolution in the Supreme Court amply answers the State's argument. The doctrine of res judicata is generally inapplicable to habeas proceedings. Smith v. Yeager, 393 U.S. 122, 124-25, 89 S.Ct. 277, 278-79, 21 L.Ed.2d 246 (1968) (per curiam); Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924). Moreover, we note that conventional notions of finality in criminal litigation are of no weight where life or liberty is at stake and infringement of constitutional rights is alleged. Sanders v. United States, supra, 373 U.S. at 8, 83 S.Ct. at 1073; see Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 228, 89 S.Ct. 1068, 1075, 22 L.Ed.2d 227 (1969). Thus, notwithstanding that in his earlier petition Wilson advanced substantially the same ground for relief that he now advances, we conclude that the "ends of justice" require a consideration of the merits of his present application.
We turn first to United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115. There the defendant was indicted in 1972 for armed robbery and held pending trial in a city jail. Government agents contacted Nichols, an inmate serving a sentence for forgery, who had previously served as a paid informant for the Federal Bureau of Investigation. Nichols advised the agents that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. Nichols was told to be alert to any statements made by the prisoners, but not to initiate any conversation with or question Henry regarding the robbery. The informant later reported that he engaged in a conversation with Henry during which Henry told him about the robbery. Nichols was paid for this information. Henry's inculpatory statements were used against him at trial and led to his conviction, which was summarily affirmed, 483 F.2d 1401 (4th Cir.1973), and his petition for certiorari was denied, 421 U.S. 915, 95 S.Ct. 1575, 43 L.Ed.2d 781 (1975).
When Henry moved to vacate his conviction pursuant to 28 U.S.C. Sec. 2255, he claimed that Nichols' testimony violated his Sixth Amendment right to counsel, inasmuch as a paid informant had been intentionally placed in his cell to secure information about the robbery. The district court summarily denied Henry's Sec. 2255 motion, but the Court of Appeals for the Fourth Circuit reversed...
To continue reading
Request your trial
-
Kuhlmann v. Wilson
...The court then held that under Henry respondent was entitled to relief. Held: The judgment is reversed, and the case is remanded. 742 F.2d 741, reversed and Justice POWELL delivered the opinion of the Court with respect to Parts I, IV, and V, concluding that the Court of Appeals erred in ho......
-
State v. Marshall
...from the respondent. Id.Wilson appealed and another divided panel of the Second Circuit reversed. Id.; see Wilson v. Henderson, 742 F.2d 741, 745 (2d Cir.1984). Among other things, the majority found that the facts of the case were indistinguishable from Henry and that Henry was fully appli......
-
Manlove v. Sullivan
...Manlove's claim here, challenges a decision that is questionable in light of presently accepted legal principles. See Wilson v. Henderson, 742 F.2d 741 (2d Cir.1984), rev'd sub. nom. Kuhlmann v. Wilson. Although Kuhlmann, which interpreted 28 U.S.C. Section 2244(b), is not binding on this C......
-
People v. Margolies
...a jailed suspect can never exclude his questioners. They have been specifically placed, sometimes in defendant's own cell, Wilson v. Henderson, 2nd Cir., 742 F.2d 741, so that they will have constant access to him. The prisoner can never effectively terminate the questioning because he does......