Sanders v. Sullivan, 177

• Citation: 863 F.2d 218
• Decision Date: 02 December 1988
• Docket Number: No. 177,D,177
• Parties: Walter SANDERS, Petitioner-Appellant, v. James E. SULLIVAN and Robert Abrams, The Attorney General of the State of New York, Respondents-Appellees. ocket 88-2079.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 218

863 F.2d 218

57 USLW 2363

Walter SANDERS, Petitioner-Appellant, v. James E. SULLIVAN and Robert Abrams, The Attorney General of the State of New York, Respondents-Appellees.

No. 177, Docket 88-2079.

United States Court of Appeals Second Circuit.

Argued Oct. 5, 1988.

Decided Dec. 2, 1988.

Alan J. Brudner, New York City (Henry Putzel III, New York City, of counsel), for petitioner-appellant.

Robert M. Raciti, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., Marc Frazier Scholl, Asst. Dist. Atty., New York City, of counsel) for respondents-appellees.

Before KAUFMAN, NEWMAN, and GARTH, ^* Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

In our system of government, the federal courts, Janus-like, must often observe two directions at once. On the one hand, through unstinting vigilance, we must warrant the guarantees of the Constitution. Yet we are enjoined, on the other hand, to forbear gratuitous intrusions into the judicial functions of the several states. Nowhere are these two competing imperatives more inextricably intertwined than in a federal court's habeas corpus duties. By allowing state courts a fair opportunity to correct constitutional violations, a federal court fulfills its obligations both to the individual criminal defendant and to our system of federalism.

Petitioner Walter Sanders appeals from a judgment of the United States District Court for the Southern District of New York (Motley, J.) denying his petition for a writ of habeas corpus, 701 F.Supp. 1000 (S.D.N.Y.1988). Petitioner sought review of his New York state convictions for manslaughter in the second degree, robbery in the first and second degrees, and criminal possession of a weapon in the second and third degrees, arising from the shooting of Omar Sabir, a/k/a Bruce Thomas, during the robbery of a drug dealer, Carmelo Perez.

The events surrounding the murder of Omar Sabir were disputed at trial and remain in doubt today. Petitioner's conviction was predicated on the testimony of the state's two principal witnesses, Carmelo Perez, and his now deceased common-law wife, Irma Semiday. Both testified that Walter Sanders shot Sabir on October 14, 1980. Perez, however, recanted this testimony after his paramour died. After meeting Sanders at Sing-Sing prison, Perez revealed that he had perjured himself at trial to protect Semiday, who, he now asserts, shot and killed Sabir. It is upon this recantation and alleged perjury that Sanders bases this appeal.

In his district court petition, Sanders asserted four grounds of reversible error, including the prosecutor's knowing use of false testimony. Judge Motley held that state remedies had been exhausted. In the absence of state court fact finding on the perjury, and one other claim, she ordered an evidentiary hearing. After the hearing, Judge Motley denied the petition. She later issued a certificate of probable cause under Fed.R.App.P. 22(b), to consider whether "under the circumstances of this case, the appropriate standard for a violation of due process as a result of a recantation of a material witness does not require that the prosecutor be aware of the perjured trial testimony." For the reasons stated below, we affirm in part and remand.

I

The origins of this proceeding derive from the sordid machinations of drug traffickers. Petitioner and his accomplice Sabir, supposedly interested in obtaining drugs, encountered Carmelo Perez, a Harlem drug dealer, in the hallway outside Perez's apartment. Sanders claims that he intended to buy drugs for a man he identified only as "Eric." Perez, in contrast, testified that petitioner and Sabir, each armed with guns, robbed him within a few feet of his door. According to Perez, during the holdup, Irma Semiday opened the apartment door to see what was happening in the hallway and was fired upon by Sabir and Sanders. When Semiday reopened the door, Perez claimed that Sanders fired again, accidentally shooting Sabir. Taking the stand in his own defense, Sanders testified he was unarmed and not robbing Perez on the night of the shooting. He stated that Irma Semiday shot and killed Sabir when she reopened the apartment door.

On April 19, 1982, a jury convicted Sanders of manslaughter in the second degree, robbery in the first and second degrees, and criminal possession of a weapon in the second and third degrees. On the manslaughter and robbery counts, he was sentenced to two five-to-fifteen year concurrent terms. He also received a two and one third-to-seven year concurrent term on the possession of a weapon count. After serving 6 years, he was paroled on August 3, 1988.

After his conviction, petitioner embarked on a series of appeals that led ultimately to this court. On direct appeal to the First Department of the Appellate Division of the Supreme Court of New York, petitioner claimed error in the court's discharge of a juror during the trial, prosecutorial misconduct, and an excessive sentence. The Appellate Division affirmed the conviction without opinion on January 31, 1984. People v. Sanders, 99 A.D.2d 686, 471 N.Y.S.2d 727 (1984). The New York Court of Appeals denied Sanders's application for leave to appeal on May 16, 1984. People v. Sanders, 62 N.Y.2d 810, 477 N.Y.S.2d 1035, 465 N.E.2d 1278 (1984).

In April 1984, Sanders and Perez met at the Sing-Sing Correctional Facility, where both were incarcerated. Perez told the petitioner he knew that Irma Semiday, not Sanders, was guilty of shooting Sabir. Claiming remorse, Perez wanted the true facts to be known--since Irma Semiday was dead, he no longer felt the need to falsify on her behalf. Perez signed five typewritten affidavits, which Sanders produced in the prison library, recanting his trial testimony. Sanders then proceeded with a coram nobis motion to vacate his conviction, pursuant to N.Y.Crim.Proc.L. Sec. 440.10 (McKinney 1983), alleging, inter alia, that the prosecution had knowingly used perjured testimony at trial. Because Sanders's papers, which included Perez's affidavit, contained no evidence that the prosecution had been aware of the alleged falsification, Justice Rothwax denied the motion without an evidentiary hearing in March, 1985. Leave to appeal further was denied.

Sanders then sought, pro se, a writ of habeas corpus. He requested a new trial because of 1) prosecutorial misconduct in making negative statements about a defense witness, 2) the trial court's improper discharge of the jury foreperson, 3) ineffective assistance of counsel, and 4) the prosecutor's knowing use of perjured testimony. After finding that Sanders had exhausted his remedies, Judge Motley granted an evidentiary hearing on Sanders's latter two claims because no facts were "found" in state court. At this hearing, Perez recanted part of his testimony and stated that Irma Semiday had shot Sabir. He maintained, however, that Sanders was armed and had attempted to rob him at the time of the shooting.

Sanders initially claimed in his petition that the Assistant District Attorney knew that Perez perjured himself at trial. But after the hearing he conceded the total lack of evidence on this point. Indeed, Perez testified at the hearing that he had never informed the Assistant District Attorney of the falsehoods in his previous testimony. Because Judge Motley found that petitioner had failed to demonstrate prosecutorial knowledge of the alleged perjury, she considered it unnecessary to determine the credibility of Perez's recantation. While she was aware of his claim regarding the use of perjured testimony alone, she considered it legally meritless. Judge Motley also denied the other grounds of the petition.

Sanders sought a certificate of probable cause to permit appeal of the denial of the writ, arguing that his conviction, based only upon Perez's alleged perjury, denied due process of law to him. He had pressed this claim after the evidentiary hearing in his Proposed Findings of Fact and Conclusions of Law. Judge Motley granted the certificate pursuant to Fed.R.App.Pro. 22(b) to determine whether due process rights are violated when a conviction rests on perjured testimony although there is no prosecutorial complicity or knowledge of the perjury. In granting the certification, Judge Motley noted that we had not directly confronted this issue.

II

Designed to provide expeditious relief for those imprisoned in violation of the Constitution, the federal habeas corpus statute, 28 U.S.C. Sec. 2254 (1982), embodies one of the jewels of American common law and our federal system of governance. It generally requires a state prisoner seeking federal review of a conviction to exhaust available state remedies. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The essence of this doctrine is that state courts, as well as federal courts, are guardians of the federal constitutional rights of state criminal defendants. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982); Irvin v. Dowd, 359 U.S. 394, 404-05, 79 S.Ct. 825, 831-32, 3 L.Ed.2d 900 (1959); Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (in banc). The requirement of exhaustion is an expression of comity within our federal system; "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation...." Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). Only a fair presentation of the factual and legal premises of the federal claim to the state courts satisfies the exhaustion requirement. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Picard v. Connor, 404 U.S. at 276-77, 92 S.Ct. at 512-13.

Like most general rules, the rule requiring exhaustion is not iron-clad--a court of appeals may, in some circumstances, review a petitioner's claim despite the lack of exhaustion in the ...