Cameron v. Fastoff, 176

Decision Date22 April 1976
Docket NumberNo. 176,D,176
Citation543 F.2d 971
PartiesEdith May CAMERON, et al., Petitioners-Appellants, v. Charles FASTOFF, Director, New York City Department of Probation, et al., Respondents-Appellees. ocket 75-2073.
CourtU.S. Court of Appeals — Second Circuit

Lawrence Stern, Brooklyn, N. Y. (Diller & Schmukler, New York City), for petitioners-appellants.

Lillian Z. Cohen, Asst. Atty. Gen. of the State of N. Y., New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondents-appellees.

Before MANSFIELD, TIMBERS, and GURFEIN, Circuit Judges.

TIMBERS, Circuit Judge:

On this appeal from orders entered March 20 and 31, 1975 in the Eastern District of New York, Walter Bruchhausen, District Judge, and a judgment entered March 21, 1975, dismissing a petition by state prisoners for writs of habeas corpus, we find that the determinative threshold question, except for one claim of error, is whether petitioners have exhausted state remedies as required by 28 U.S.C. § 2254(b) and (c) (1970). We hold that they have not and therefore affirm the dismissal of the petition on that ground; but, with respect to the one claim of error as to which there has been exhaustion of state remedies, we affirm the dismissal on the merits.


On February 17, 1972, each of the six petitioners pleaded guilty to various degrees of criminal possession of a dangerous drug (heroin), N.Y. Penal Law §§ 220.05, 220.10, 220.15 (McKinney 1967), before Justice William C. Brennan in the Queens County Supreme Court. On May 15, 1972, they were sentenced by Justice Brennan to terms ranging from three years probation to fifteen years imprisonment; two were fined. 1

Notwithstanding the fact that the judgments of conviction were entered upon pleas of guilty, petitioners appealed, pursuant to N.Y. Criminal Procedure Law § 710.70 (McKinney 1971), from two orders which had been entered prior to their guilty pleas denying their motions to suppress evidence, which we discuss more fully below. The Appellate Division on December 29, 1972 filed an opinion affirming the determination of the trial court that there was probable cause for issuance of the search warrants based on the police officer's affidavit, but remanded for a hearing on whether the affidavit contained perjurious statements. People v. Cameron, 40 App.Div.2d 1034, 339 N.Y.S.2d 12 (2nd Dept. 1972).

Following a hearing pursuant to the remand, Justice Brennan on August 14, 1973 filed an opinion again denying the motions to suppress, this time on the ground that petitioners had failed to sustain their burden of proving that the affidavit in question was perjurious. The Appellate Division on May 6, 1974 filed an opinion affirming the three orders which had denied motions to suppress, including Justice Brennan's latest order, and affirmed the convictions of the six petitioners. People v. Cameron, 44 App.Div.2d 355, 355 N.Y.S.2d 19 (2nd Dept. 1974). The New York Court of Appeals denied leave to appeal on May 29, 1974.

The United States Supreme Court on December 9, 1974 denied certiorari. Cameron v. New York, 419 U.S. 1049 (1974). The petition for certiorari raised for the first time federal constitutional claims of denial of procedural due process, effective assistance of counsel, compulsory process and confrontation of witnesses; it also asserted the claim that previously had been raised of lack of probable cause for issuance of the search warrants.

The instant petition for writs of habeas corpus was filed in the Eastern District of New York on February 5, 1975, from the denial of which by Judge Bruchhausen in two written opinions, 2 and a judgment dismissing the petition, the instant appeal has been taken. The habeas petition presented to the district court the same Fourth, Fifth and Sixth Amendment claims which petitioners had raised for the first time in their certiorari petition. Judge Bruchhausen dismissed the habeas petition on the merits.

We affirm the dismissal on the merits of the one claim as to which there has been exhaustion of state remedies; as to the others, we affirm the dismissal for failure to exhaust state remedies.


Although we do not reach the merits of petitioners' claims with the exception of the claim discussed in Section III, infra, we believe that the following recital of petitioners' claims upon which their suppression motions were based is necessary to an understanding of our holding that petitioners have not exhausted state remedies.

Patrolman Lucido Bonino 3 was a plainclothesman assigned to gambling investigations. On May 18, 1971, he and a fellow police officer saw Stanley Sims leave his residence in St. Albans, Queens, at 11:10 A.M., join a male negro and drive with the latter to the residence of Marvin and Edith Cameron in Jamaica, Queens. Bonino knew Sims was "involved in illegal policy operations." Records of the New York City Police Department listed Sims as having been arrested 15 times for "Policy Violations, most of which are for Controller of Policy Operations." On the day in question Sims and his companion entered the Cameron residence. Bonino kept the place under observation for five hours. He saw a number of male negroes enter and remain inside. At about 4:30 P.M., Bonino saw Sims leave the Cameron residence with the male negro who had accompanied him there. Sims was carrying a large paper bag. He and the negro returned to and entered Sims' residence in St. Albans. Sims was still carrying the paper bag. Bonino kept the Sims residence under surveillance for the next half hour. During this time he saw numerous male negroes each knock on the front door, speak briefly with Sims, hand him a brown envelope and then depart. The brown envelopes were the kind used by policy collectors. During periods of five or six hours on each of the next two days, Bonino kept Sims, his residence and the Cameron residence under observation. Each day he saw Sims and the same male negro drive to the Cameron residence, enter, leave and return to the Sims residence. Each day Bonino observed that transactions corresponding to those which had taken place the first day were repeated "to the letter."

Based on these observations Bonino concluded that Sims and his male negro companion were accepting policy wagers at the Sims and Cameron residences. Upon his affidavit he applied for and obtained warrants authorizing him to search for gambling paraphernalia at the Sims and Cameron residences as well as in the car used by Sims and his companion to drive back and forth.

Execution of the search warrants resulted in the seizure at the Sims residence of gambling records, two revolvers, more than $40,000 in cash and $15,000 in diamonds and other jewelry; at the Cameron residence, 20 pounds of pure heroin, a large quantity of policy slips and two loaded revolvers. A subsequent search of Sims' safe deposit box resulted in the seizure of approximately $70,000 additional cash and some U.S. savings bonds.

Petitioners moved in the Queens County Supreme Court to suppress the seized evidence on the ground that the warrants were issued without probable cause. Justice Albert H. Bosch set the motion for hearing. But petitioners waived a hearing and relied solely on the alleged legal insufficiency of Bonino's affidavit. The motion came on for hearing before Justice Frank O'Connor. After hearing oral argument he filed an opinion on November 30, 1971 and entered the first of the several orders denying petitioners' motions to suppress.

On January 12, 1972, petitioners renewed their motion to controvert the affidavit in support of the search warrants and to suppress the evidence. In support of the renewed motion, petitioners' counsel alleged that, as a result of testimony before the Knapp Commission, a federal grand jury had been convened "to examine questions specifically related to the conduct of the arresting officers in this case". Petitioners' counsel further alleged, on information and belief, that the officers had invoked the Fifth Amendment and had refused to testify before the grand jury. He also alleged that the affidavit upon which the search warrants were issued contained perjured testimony.

In opposition to the motion, the Queens County District Attorney alleged that Assistant United States Attorney Edward M. Shaw of the Southern District of New York had told him that, although two police officers connected with this case had been called before the federal grand jury, "the testimony sought from them had nothing whatsoever to do with their conduct in the case before this Court."

On January 26, 1972, Justice Brennan filed an opinion and entered the second order denying petitioners' motion to suppress.

After petitioners pleaded guilty and were sentenced, their first appeal to the Appellate Division, as stated above, resulted in that court's decision of December 29, 1972 affirming Justice O'Connor's order that there was probable cause for issuance of the search warrants based on Bonino's affidavit but, with respect to Justice Brennan's order, remanding for a hearing as to whether the affidavit contained perjurious statements.

The hearing pursuant to the remand was held before Justice Brennan in June 1973 two years after the search warrants had been issued and executed. The four witnesses who testified, including two of the petitioners, were all called by petitioners' counsel. The critical witness of course was Bonino. There was an exhaustive inquiry, extending over a period of three days, regarding the surveillance which preceded the issuance of the search warrants, the basis for the statements in the affidavit on which the warrants were issued, and the evidence seized pursuant to the warrants. Bonino testified at the hearing before Justice Brennan that he had testified before a federal grand jury as well as a Queens County grand jury. He said that his testimony before the...

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    • October 23, 1978 or unrelated claims to which there has been no exhaustion. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); United States v. Deegan, 440 F.2d 304, 305 n.1 (2d Cir. 1971); United States v. McMann, 394 F.2d 402 (2d Cir. 1968); United States......
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