Daye v. Attorney General of State of N. Y.

Decision Date28 October 1981
Docket NumberNo. 906,D,906
Citation663 F.2d 1155
PartiesWilliam DAYE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF NEW YORK and Eugene S. LeFevre,Superintendent, Clinton Correctional Facility, Respondents-Appellees. ocket 80-2292.
CourtU.S. Court of Appeals — Second Circuit

Phylis Skloot Bamberger, The Legal Aid Society, Federal Defender Services Unit, New York City, for petitioner-appellant.

Meredith Anne Feinman, Asst. Dist. Atty., New York City (Robert M. Morganthau, Dist. Atty. of New York County, Norman Barclay, Asst. Dist. Atty., New York City, on the brief), for respondents-appellees.

Before LUMBARD and NEWMAN, Circuit Judges, and METZNER, * District Judge.

NEWMAN, Circuit Judge:

William Daye appeals from a judgment of the District Court for the Southern District of New York (Milton Pollack, Judge), dismissing on the merits his petition for habeas corpus challenging the validity of his state court conviction for murder, robbery, and related crimes. We affirm the dismissal without prejudice solely on the ground that state court remedies have not been exhausted. 28 U.S.C. § 2254(b) (1976).

Daye was convicted on June 26, 1976 after a jury trial in the Supreme Court, New York County (Burton Roberts, Judge), of intentional murder, felony murder, and two counts of robbery in the first degree. He was sentenced to concurrent terms of imprisonment of 20 years to life on each murder conviction and 81/3 to 25 years on each robbery conviction. He appealed to the Appellate Division, First Department, alleging primarily that the trial judge's excessive and prejudicial questioning had denied him a fair trial and, in addition, that he had been improperly impeached by evidence of a prior conviction on which he had been adjudicated a youthful offender. The Appellate Division affirmed without opinion, and leave to appeal to the New York Court of Appeals was denied.

In determining whether Daye had exhausted state court remedies, Judge Pollack examined Daye's brief in the Appellate Division. See Twitty v. Smith, 614 F.2d 325, 331-32 n.7 (2d Cir. 1979). The District Court acknowledged that Daye had made no express reference to a denial of federal constitutional rights nor cited any federal cases. But, Judge Pollack noted, the state court brief had repeatedly argued that the trial judge's questioning "deprived the defendant of a fair trial" and deprived him of his "fundamental right to a fair trial." The District Court concluded that these references must have alerted the Appellate Division to the unstated basis of Daye's claim-that he had been denied a fair and impartial trial in violation of rights secured by the Sixth and Fourteenth Amendments. Judge Pollack relied on Twitty v. Smith, supra, 614 F.2d at 332, in which this Court ruled that reference in an Appellate Division brief to lack of "effective assistance of counsel" sufficed for purposes of exhaustion to tender to the state court an implicit claim that the defendant had been denied his Sixth Amendment right "to have the Assistance of Counsel for his defense." Turning to the merits, Judge Pollack concluded that the state trial judge's role had been "active" but not prejudicial and that the cross-examination of the accused involved no error of constitutional dimension.

This Court has frequently ruled that the exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts. Wilson v. Fogg, 571 F.2d 91 (2d Cir. 1978); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2d Cir. 1974). We have especially emphasized the importance of identifying a claim as a federal constitutional claim when challenging the conduct of a state court trial judge. Fielding v. LeFevre Just two years ago we applied this strict approach to exhaustion to a habeas corpus petition indistinguishable from Daye's. Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979). Like Daye, Johnson sought habeas corpus relief because of the excessive and prejudicial intervention of the state court trial judge, and, like Daye, his state court briefs, which made no express mention of the Sixth or Fourteenth Amendments, referred to the denial of a fair and impartial trial and characterized a fair trial as a fundamental element of the judicial process. Though the District Court in Johnson had concluded that the exhaustion requirement had been met and that the petitioner was entitled to relief on the merits, this Court reversed, ruling that Johnson had not presented a federal constitutional claim to the state courts. Even though Johnson's brief in the Appellate Division cited ten decisions of federal courts, his fair trial claim was deemed to be an appeal only to state law or to the supervisory power of the state appellate courts, and thus not the "same claim," Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), that he was presenting to the federal courts. Johnson v. Metz, supra, 609 F.2d at 1054.

548 F.2d 1102 (2d Cir. 1977); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972).

Twitty v. Smith, supra, may be viewed as a slight relaxation of the strict requirement that exhaustion requires an explicit federal labeling of a state court appellant's claim; that decision, however, cannot justify overruling or ignoring Johnson v. Metz, supra. Twitty pointedly drew the distinction between the effective assistance of counsel claim in that case and the fair trial claim in Johnson, observing that the latter claim, because of its infrequent presentation as a federal constitutional claim, did not alert the state courts to its federal nature simply by reference to denial of a fair trial. Twitty v. Smith, supra, 614 F.2d at 332 n.8. With Johnson so recently decided and explicitly distinguished from Twitty, its precedential force must be recognized by this panel, unless and until its continuing validity is properly reexamined upon a rehearing en banc. See Kremer v. Chemical Construction Corp., 623 F.2d 786, 788 (2d Cir. 1980).

There is surely room for fair argument whether a federal labeling requirement, as a component of exhausting state court remedies, serves either the interests of comity or justice. Evidence does not abound to indicate that state courts welcome the opportunity to give renewed consideration to a criminal conviction after the "federal" nature of a claim has been explicitly identified. Nor is there much reason to believe that the articulation of facts (here, excessive and prejudicial court questioning) and consequence (here, denial of a fair and impartial trial) are inadequate to afford state courts, fully aware of their constitutional responsibilities, a fair opportunity to decide whether a conviction accords with constitutional requirements. From the standpoint of the accused, it is obviously burdensome to be delayed two or three years in the presentation of what may be a successful challenge to a conviction, simply because of a pleading deficiency by his state court counsel. Moreover, strict adherence to a federal labeling requirement, after Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), runs the risk of placing the federal claim permanently beyond the possibility of vindication in the event that counsel's state court pleading deficiency is deemed a procedural forfeiture.

Some courts appear to have adopted a half-way approach, relaxing exhaustion requirements only when satisfied that the claim on the merits is unavailing. See, e. g., Reese v. Bara, 479 F.Supp. 651, 653 (S.D.N.Y.1979); Boothe v. Wyrick, 452 F.Supp. 1304, 1309 (W.D.Mo.1978); Winegar v. Corrections Department, 435 F.Supp. 285, 291 (W.D.Mich.1977), aff'd without opinion, 582 F.2d 1281 (6th Cir. 1978). While this technique conserves judicial resources, it is analytically unsound and creates the anomalous result that the better the petitioner's claim on the merits, the longer it will take him to have it vindicated.

Whatever our disagreements with an exhaustion requirement that entails explicit labeling of a federal claim, we are obliged to affirm this judgment without prejudice, solely on grounds of failure to exhaust state court remedies, and await a petition suggesting rehearing en banc, which we assume Daye will present.

LUMBARD, Circuit Judge (dissenting):

I dissent. William Daye claims that he was denied a fair trial by reason of the trial judge's constant interruption of and participation in his trial for murder. The record indicates that he raised this claim in his state court appeals. Moreover, it is crystal clear that the claim made in the state courts asserted a violation of Daye's constitutional rights by reason of the state's failure to give Daye a fair trial. We should pass on the merits of that claim as did Judge Pollack in the district court. As a review of the record shows that Daye's claim is well founded, I would grant the petition for a writ of habeas corpus.


In a five-count indictment, the state charged Daye with the armed robbery of the E & D Luncheonette at 144th Street and Seventh Avenue on March 19, 1974, and with the killing of the restaurant's cook, Isaac Stanback, in the course of the robbery. His trial took place over two years later, and the jury convicted him of felony murder, intentional murder, and two counts of first degree armed robbery.

The trial judge, the Honorable Burton B. Roberts, sentenced Daye to concurrent indeterminate terms of from 20 years to life for the murder convictions and to eight and one-third to 25 years for robbery.

At trial, the state produced fourteen witnesses, including six who were present in the E & D Luncheonette when William Daye entered. They testified that the cook, Isaac Stanback, was on the telephone at the rear of the luncheonette. Daye...

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