Alexander v. Harris, 509
Decision Date | 01 March 1979 |
Docket Number | D,No. 509,509 |
Citation | 595 F.2d 87 |
Parties | Charles ALEXANDER, Appellant, v. David HARRIS, as Superintendent of Green Haven Correctional Facility, Appellee. ocket 78-2036. |
Court | U.S. Court of Appeals — Second Circuit |
Herbert S. Siegal, New York City, for appellant.
Tyrone Mark Powell, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for appellee.
Before FRIENDLY, SMITH and OAKES, Circuit Judges.
Appellant was convicted on April 12, 1976 of criminal sale of a controlled substance in the first degree in violation of N.Y. Penal Law § 220.43 (McKinney Supp.1978) after a jury trial before Justice Drohan in the New York Supreme Court, Bronx County. The Appellate Division, First Department, unanimously affirmed the judgment of conviction without opinion. People v. Alexander, 56 A.D.2d 740, 391 N.Y.S.2d 936 (1st Dep't. 1977). The Court of Appeals of the State of New York denied appellant leave to appeal (Order of April 21, 1977), and the United States Supreme Court denied certiorari. Alexander v. New York, 434 U.S. 836, 98 S.Ct. 125, 54 L.Ed.2d 98 (1977).
Appellant then filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising two of the grounds upon which he had appealed to the Appellate Division of the New York Supreme Court and in spite of which that court affirmed his conviction. Appellant argued that the New Jersey county prosecutor's delegation of authority to a police detective to apply for renewal of a wiretap order and the subsequent disclosure of the intercepted communications by the New Jersey police to the New York authorities violated the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2516(2). Judge Gerard L. Goettel of the United States District Court for the Southern District of New York dismissed the petition under Rule 4 of the Rules Governing Section 2254 Cases 1 without requiring the respondent to answer, Alexander v. Harris, No. 78 Civ. 572 (GLG) (S.D.N.Y. Feb. 28, 1978) (opinion). Judge Goettel subsequently granted appellant's application for a certificate of probable cause to appeal. Alexander v. Harris, 78 Civ. 572 (GLG) (S.D.N.Y. March 31, 1978) (endorsement).
On appeal to this court, appellant again argues that the delegation of authority and the use of the intercepted communications violated 18 U.S.C. § 2516(2). We disagree.
In United States v. Manfredi, 488 F.2d 588, 601 (2d Cir. 1973), Cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974), this court rejected the position that "application for the wiretap orders must be made by the district attorney in person appearing before the judge." In Manfredi, we extended United States v. Tortorello, 480 F.2d 764, 777-78 (2d Cir.), Cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973), insofar as it construed a New York state law requiring personal appearance of the person seeking the warrant. Here there is no such requirement under the New Jersey statute. The prosecutor himself may apply for a warrant or he may authorize in writing applications by investigative personnel. N.J.Stat.Ann. 2A-156A-8 (West 1971). In accordance with 18 U.S.C. § 2516(2) the prosecutor did just this, I. e., authorized the detective to seek an extension order. The prosecutor's personal appearance was not required. See S.Rep.No.1097, 90th Cong., 2d Sess. (1968), reprinted in (1968) U.S. Code Cong. & Admin. News, pp. 2112, 2187. Although some of the language of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), might be read to point in appellant's favor, that case dealt with federal applications and approval thereof under 18 U.S.C. § 2516(1). Here "the principal prosecuting attorney of (a) political subdivision (of State)," Viz. Essex County, did approve the application for an extension.
In light of our disposition of the case, we need not address the question whether the alleged violation of the statute is cognizable in habeas corpus in the absence of a constitutional violation, Cf. Hill v. United States, 368 U.S. 424, 428-29, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ( ), or whether to the extent that petitioner's claim for relief is based upon a search and seizure in violation of the Fourth Amendment, the matter is not cognizable in habeas corpus under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
We also do not rely on the State's argument on appeal that the district court should not have issued a certificate of probable cause to appeal after it acted under the third sentence of Rule 4 of the Rules Governing Section 2254 Cases, note 1 Supra, and dismissed a habeas petition without requiring an answer because "it plainly appear(ed) from the face of the petition and any exhibits annexed to it that petitioner (was) not entitled to relief." In the absence of any required pleading by the State in the district court, the State argues, it responds to the petition for the first time in the court of appeals and is thus unfairly limited in the determination of the facts to the record that the petitioner has submitted; in addition, the State loses its right to have the district court rule on the issues and arguments raised there. Judge Goettel indicated that he was granting the certificate because of "the absence of any clear-cut standard" for when the district court should issue a certificate of probable cause to appeal, that is, "for evaluating how much merit an appeal should have." 2
The State submits that this Court should provide some guidance on this issue to the district courts. We agree because the issue is bound to arise again and, so far as our research discloses, this Court has not directly passed on the question. Indeed, it appears that we have never said anything more specific than to deny a certificate of probable cause to appeal because there was some question whether the petitioner had exhausted his state remedies and "(i)n any event . . . he (did not make) a showing of federal questions adequate to deserve encouragement to proceed further." Jones v. Richmond, 245 F.2d 234, (2d Cir.), Cert. denied, 355 U.S. 846, 78 S.Ct. 71, 2 L.Ed.2d 56 (1957).
The only Supreme Court precedent clearly on point is a Memorandum of Justice Harlan on an application for a certificate of probable cause and stay of execution in Rosoto v. Warden, 83 S.Ct. 1788, 11 L.Ed.2d 15 (1963). Justice Harlan denied the application because of the absence of any "substantial constitutional question." Id. at 1789, 11 L.Ed.2d at 16. The lower federal courts have variously articulated the standard for issuance of a certificate of probable cause to appeal. See. e. g., Gardner v. Pogue, 558 F.2d 548 (9th Cir. 1977) ( ); Madison v. Tahash, 359 F.2d 60 (8th Cir. 1966) ( ); Player v. Steiner, 292 F.2d 1 (4th Cir. 1961) (substantial constitutional question), Cert. denied, 368 U.S. 959, 82 S.Ct. 404, 7 L.Ed.2d 390 (1962); Larch v. Sacks, 290 F.2d 548 (6th Cir. 1961) ( ); Burgess v. Maryland, 284 F.2d 486 (4th Cir. 1960) ( ), Cert. denied, 365 U.S. 837, 81 S.Ct. 753, 5 L.Ed.2d 746 (1961); Dye v. Sacks, 279 F.2d 834 (6th Cir. 1960) (substantial federal question); McCoy v. Tucker, 259 F.2d 714 (4th Cir. 1958) ( ); Stewart v. Ragen, 231 F.2d 312 (7th Cir. 1956) ( ); Ex Parte Farrell, 189 F.2d 540 (1st Cir.) (district court should not hesitate to deny application for certificate where constitutional point was unsubstantial or clearly without merit or where writ was discharged after issuance pursuant to findings of fact), Cert. denied, 342 U.S. 839, 72 S.Ct. 64, 96 L.Ed. 634 (1951); Dillingham v. Wainwright, 422 F.Supp. 259 (S.D.Fla.1976) ( ), Aff'd 555 F.2d 1389 (5th Cir. 1977); Winfield v. Cascles, 403 F.Supp. 956 (E.D.N.Y.1975) ( ); Vera v. Beto, 332 F.Supp. 1197 (S.D.Tex.1971) ( ); Jones v. Rundle, 329 F.Supp. 381 (E.D.Pa.1971) ( ); Siegel v. Follette, 290 F.Supp. 636 (S.D.N.Y.1968) ( ); Martin v. Henderson, 289 F.Supp. 411 (E.D.Tenn.1968) ( ); Matzner v. Davenport, 288 F.Supp. 636 (D.N.J.1968) ( ), Aff'd per curiam, 410 F.2d 1376 (3rd Cir. 1969), Cert. denied, 396 U.S. 1015, 90 S.Ct. 570, 24 L.Ed.2d 506 (1970); United States v. Reeves, 246 F.Supp. 599 (S.D.N.Y.1965) ( ). See also Strode v. Mississippi, 456 F.2d 1295 (5th Cir. 1972) ( ); R. Sokol, Federal Habeas Corpus 139 & n. 403 (1969) (certificate should issue unless petition is plainly frivolous); Blackmun, Allowance of In Forma Pauperis Appeals in Section 2255 and Habeas Corpus Cases, 43 F.R.D. 343, 352 (1967) ( ).
We agree with...
To continue reading
Request your trial-
U.S. v. Smith
...a district attorney, it was sufficient if the district attorney approved an application prepared by his assistants) and in Alexander v. Harris, 595 F.2d 87, 89 (1979) (holding that a New Jersey statute allowing the district attorney to authorize in writing applications by investigative pers......
-
Diaz v. Mantello
...24 (2d Cir. 1990) (per curiam) (discussing certificate of probable cause under standard prior to amendment of 2253); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir.1979). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. S......
-
Coronado v. Lefevre
...not be taken in good faith. Furthermore, as the petition presents no questions of substance for appellate review, see Alexander v. Harris, 595 F.2d 87, 90 (2d Cir.1979), a certificate of probable cause will not It is so ordered. 1 The Court granted petitioner extensions of time in which to ......
-
Cadilla v. Johnson
...curiam) (discussing issuance of a certificate of probable cause under standard prior to amendment of 28 U.S.C. § 2253); Alexander v. Harris, 595 F.2d 87, 90 (2d Cir.1979). 3. Pursuant to 28 U.S.C. § 1915(a) the Court certifies that any appeal from this Order would not be taken in good faith......