Davis v. Lansing, 1427

• Decision Date: 30 June 1988
• Docket Number: D,No. 1427,1427
• Citation: 851 F.2d 72
• Parties: Larry DAVIS, Petitioner-Appellant, v. Douglas T. LANSING, Warden, Metropolitan Correctional Center, and Richard J. Koehler, Commissioner of Corrections, City of New York, Respondents-Appellees. ocket 88-2271.
• Court: U.S. Court of Appeals — Second Circuit

Page 72

851 F.2d 72

Larry DAVIS, Petitioner-Appellant, v. Douglas T. LANSING, Warden, Metropolitan Correctional Center, and Richard J. Koehler, Commissioner of Corrections, City of New York Respondents-Appellees.

No. 1427, Docket 88-2271.

United States Court of Appeals Second Circuit.

Argued June 17, 1988.

Decided June 30, 1988.

William M. Kunstler, New York City (Lynne Stewart, New York City, of counsel), for petitioner-appellant.

Peter D. Coddington, Asst. Dist. Atty., Bronx County, Bronx, N.Y. (Paul T. Gentile, Dist. Atty. for Bronx County, Bronx, N.Y., of counsel), for respondents-appellees.

Before OAKES, MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

This is an expedited appeal from a judgment of the United States District Court for the Southern District of New York, Ward, J., dismissing the petition of appellant Larry Davis for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). The district court assumed jurisdiction but concluded that it should not reach the merits of the petition under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). For the reasons that follow, we affirm.

BACKGROUND

Davis is currently being tried in New York Supreme Court, Bronx County, before Acting Justice Fried, on charges of attempted murder arising out of a shootout with police in November 1986 in which several officers were wounded. Jury selection began on April 18, 1988.

After six jurors had been selected, the prosecution objected to what it characterized as the defense's systematic use of peremptory challenges to exclude whites from the jury. Justice Fried agreed with the prosecution that the defense's use of peremptory challenges was governed by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which holds that a prosecutor may not use peremptory challenges to strike jurors solely because of race. Id. at 89, 106 S.Ct. at 1719. He concluded that the prosecution had made a prima facie showing that the defense had excluded jurors because of race. Cf. id. at 93-94, 106 S.Ct. at 1721-22. After holding an in camera hearing to explore the defense's reasons for exercising its peremptory challenges, Justice Fried concluded that several challenges had been exercised solely because of race. He therefore dismissed the six jurors already selected as well as the venire from which they had been chosen, restored to each side the full twenty peremptory challenges provided by New York law, and started jury selection over again.

Davis applied to the Appellate Division for a writ of mandamus and/or prohibition pursuant to Article 78, N.Y.Civ.Prac.L. & R. Sec. 7801 et seq. (McKinney 1981 & Supp.1988). He sought to prevent Justice Fried from applying Batson to defense peremptories. The Appellate Division denied the petition on May 13 without hearing oral argument. Davis applied to the New York Court of Appeals to reverse the Appellate Division, but on May 17 Associate Judge Bellacosa refused to sign an order to show cause that would have brought the matter before that court.

Jury selection resumed after Justice Fried denied Davis' request for a stay. Davis then commenced a second Article 78 proceeding seeking an order directing Justice Fried to reseat the six discharged jurors, but the Appellate Division denied this petition on May 24 after oral argument. On May 25, Judge Bellacosa denied Davis' request for an order to show cause.

On May 26, Davis filed the instant habeas petition in the United States District Court for the Southern District of New York. He named as respondents the warden of the Metropolitan Correctional Center The district court denied the requested relief and dismissed the petition in a decision issued June 1. Judge Ward noted that there were "serious questions" whether Davis had exhausted state remedies by bringing his two Article 78 proceedings. J.App. at 6. He decided to disregard possible exhaustion problems, however, on the authority of Granberry v. Greer, 481 U.S. 129, ---- - ----, 107 S.Ct. 1671, 1673-76, 95 L.Ed.2d 119 (1987). See also Plunkett v. Johnson, 828 F.2d 954, 955-56 (2d Cir.1987). Judge Ward also noted that the respondents had "reserved objections to th[e] Court's subject matter jurisdiction over the petition," J.App. at 7 n. 5. Nevertheless, he assumed jurisdiction and proceeded to consider the petition on the merits.

where he is being held during trial, and the New York City Commissioner of Corrections. Davis' petition sought an order directing his release unless the New York Supreme Court vacated (1) its holding that Batson applies to the use of peremptory challenges by defense counsel, and (2) its order discharging the first six jurors selected.

The district court did not reach Davis' Batson argument, however. Instead, relying on the pendency of Davis' state criminal prosecution and his failure to show great and immediate irreparable harm, see Younger, 401 U.S. at 43-46, 91 S.Ct. at 750, Judge Ward concluded that he should abstain from exercising jurisdiction. See J.App. at 7-10.

This expedited appeal followed.

DISCUSSION

A. Jurisdiction

The question of federal jurisdiction, which the district court did not reach, is not free from doubt in this case. Davis' petition is couched in terms of habeas corpus but he essentially seeks from the federal court what he failed to obtain in the state courts--relief in the nature of mandamus or prohibition directed to Justice Fried. The federal courts have no general power to compel action by state officials, however. See, e.g., Van Sickle v. Holloway, 791 F.2d 1431, 1436 n. 5 (10th Cir.1986); Russell v. Knight, 488 F.2d 96, 97 (5th Cir.1973) (per curiam); Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir.1970); Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir.1969) (per curiam); Clark v. Washington, 366 F.2d 678, 681-82 (9th Cir.1966). Thus, if Davis had expressly sought relief in the nature of mandamus or prohibition, we would lack jurisdiction.

It is not clear that the result should be different merely because Davis has recast his plea for relief in the form of a habeas petition. The "traditional meaning and purpose of habeas corpus [is] to effect release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S.Ct. 1827, 1834 n. 7, 36 L.Ed.2d 439 (1973). Before the federal courts, Davis has at least facially brought his prayer for relief within the ambit of habeas by requesting release from custody unless the state court complies with directions to vacate its orders involving the Batson analysis. Notwithstanding the form of his request, it is clear that if he prevails, he will obtain only a continuing trial before a differently constituted jury. The fact or duration of his confinement would not be affected. The relief requested in the habeas petition thus differs little in effect from the remedies of mandamus or prohibition sought in the Article 78 proceedings.

In light of our disposition of the abstention issue, it is unnecessary to decide whether the nature of relief sought by Davis undermines the viability of his habeas petition. We do not mean to encourage the use of habeas to circumvent the unavailability of mandamus against state officials. For purposes of this appeal, however, we accept his request for release at face value and proceed to examine the merits. We do not decide whether, in a proper case, the unavailability of requested relief might alone support dismissal of a habeas petition for lack of jurisdiction. ¹

B. Exhaustion

An applicant for habeas relief generally must exhaust available state remedies. See 28 U.S.C. Sec. 2254(b), (c). Because of the nature of New York's Article 78 proceedings, it is unlikely that Davis' two petitions within the state courts exhausted state remedies.

The relief Davis sought--a writ of mandamus and/or prohibition--is regarded as an extraordinary remedy. In New York, it is settled that an Article 78 action "does not lie to review error claimed to have occurred in a criminal proceeding." Hennessy v. Gorman, 58 N.Y.2d 806, 807, 459 N.Y.S.2d 261, 261, 445 N.E.2d 644, 644 (1983). Specifically, writs of prohibition are not available to correct "errors of substantive law or procedure committed within a proceeding which is properly maintainable." Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 495-96, 502 N.E.2d 170, 172-173 (1986). Prohibition is appropriate "only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding." Id. at 353, 509 N.Y.S.2d at 495, 502 N.E.2d at 172. Neither mandamus nor prohibition is available in the absence of a clear legal right. Id. at 352, 509 N.Y.S.2d at 495, 502 N.E.2d at 172 (prohibition); City of Newburgh v. Public Employment Relations Board, 63 N.Y.2d 793, 795, 481 N.Y.S.2d 327, 328, 471 N.E.2d 140, 141 (1984) (mandamus).

Davis' requests for relief were insufficient to warrant action under Article 78 according to these standards. He did not contend that Justice Fried had acted without jurisdiction. Nor did he assert a clear legal right: even if he turns out to be correct that the Constitution imposes no limits on defense peremptory challenges, any right to unfettered use of peremptories cannot now be considered clear in view of the Supreme Court's express reservation of that question in Batson. See 476 U.S. at 89 n. 12, 106 S.Ct. at 1718 n. 12. At bottom, Davis asserted a mere error of law that does not support Article 78 relief. Cf. Rush, 68 N.Y.2d at 353, 509 N.Y.S.2d at 496, 502 N.E.2d at 173 ("prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious").

Against this background, we are inclined to conclude that Davis' claims are unexhausted. The Supreme Court has held in a closely analogous case that prejudgment pursuit of a writ of prohibition does not necessarily exhaust state remedies. See Pitchess...