Daye v. Attorney General of State of New York, 906

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation696 F.2d 186
Docket NumberD,No. 906,906
PartiesWilliam DAYE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF NEW YORK and Eugene Le Fevre, Superintendent, Greenhaven Correctional Facility, Respondents-Appellees. ocket 80-2292.
Decision Date09 December 1982

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. Morgenthau, Dist. Atty., New York County, Robert M. Pitler, Mark Dwyer, Asst. Dist. Attys., New York City, on brief), for respondents-appellees.


KEARSE, Circuit Judge:

The issue presented for our en banc consideration in this appeal concerns the standard for determining whether state remedies have been exhausted so as to permit federal habeas corpus review of a state court conviction. Appellant William Daye, a New York state prisoner, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, Milton Pollack, Judge, contending principally that, in his state trial for murder and robbery, he had been denied a fair trial in violation of his federal constitutional rights. The district court ruled that Daye had exhausted his state remedies, but dismissed the petition for lack of merit. Daye appealed the dismissal of his fair trial claim, 1 and a divided panel of this Court, without reaching the merits, affirmed on the ground that Daye had failed to exhaust his state remedies. 663 F.2d 1155 (2d Cir.1981). On en banc reconsideration, we conclude that Daye had exhausted his state remedies. We therefore vacate the decision of the panel and return the matter to the panel for consideration of the merits.


Daye was convicted in New York Supreme Court in June 1976 of felony murder, intentional murder, and two counts of first degree robbery. The events leading to his conviction are set forth in detail in the opinions of the panel, 663 F.2d 1155, familiarity with which is assumed. In brief, the state presented evidence at trial that on March 19, 1974, Daye robbed patrons and employees of a restaurant, shot and mortally wounded the restaurant's cook, attempted unsuccessfully to shoot others in the restaurant, and fled. Daye was followed by one of his victims to a building two blocks away, and was soon apprehended there by police as he was trying to climb down a drainpipe. Daye's defense was that he had been a victim of the robbery rather than its perpetrator, and that he had fled the restaurant because he had a prior arrest record and was afraid he would be accused of the robbery.

Daye appealed his conviction to the Appellate Division of the Supreme Court, complaining principally that the trial judge had "assumed an obviously hostile and prosecutorial stance towards the defendant," Daye then commenced the present proceeding by filing a petition for a writ of habeas corpus in the district court. 2 Again relying on his contentions that the trial judge, by his interrogation of witnesses and his manner of addressing defense counsel, had exhibited partisanship, Daye argued that he had been denied his right to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The state opposed the petition not only on its merits, but also on the ground that Daye had not presented his claim to the state courts in constitutional terms and thus had failed to exhaust his state remedies. Judge Pollack noted that the state court appeal had been prosecuted in terms of the denial of a "fair trial," and he concluded, citing Twitty v. Smith, 614 F.2d 325, 332 (2d Cir.1979), that even without explicit citation of the Constitution or federal cases, Daye's presentation had been sufficient to alert the state courts that Daye claimed deprivation of his right to a fair and impartial trial under the Sixth and Fourteenth Amendments. Reaching the merits, Judge Pollack dismissed Daye's petition because he concluded that the trial judge's conduct had not deprived Daye of a fair trial. This appeal followed.

                (Daye's brief to Appellate Division at 24), participated in the examination of the witnesses in a manner that tended to "aid and bolster the prosecution's case," (id. at 9), and conveyed to the jury the impression that he believed Daye was guilty (id. at 14, 24, 34).  Citing and quoting numerous portions of the trial transcript to support these assertions, Daye pointed out that "the Bench must be scrupulously free from and above even the appearance or taint of partiality, People v. DeJesus, 42 N.Y.2d 519, 523, 399 N.Y.S.2d 196, 199 [369 N.E.2d 752, 755] (1977)."    (Id. at 8.)    He argued that the trial court had instead "set impartiality aside in favor of the prosecution," (id.), thereby depriving him of his "cardinal" and "fundamental" "right to a fair trial," (id. at 34).  In so arguing, Daye did not mention the Constitution or cite any federal cases.  The Appellate Division affirmed Daye's conviction without opinion, People v. Daye, 72 A.D.2d 669, 421 N.Y.S.2d 955 (1979), and leave to appeal to the New York Court of Appeals was denied

A. Decision of the Panel

On Daye's appeal the state pursued its contention that Daye had failed to exhaust his state court remedies, and a majority of the panel concluded that Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979), compelled a ruling that there had been no exhaustion. Writing for the majority, Judge Newman stated as follows:

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, 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).

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 663 F.2d at 1156-57; see id. at 1158 (Metzner, J., concurring). Thus, although the majority in the present case saw

                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

[little] 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,

id. at 1157 (Newman, J.); see id. at 1158 (Metzner, J., concurring), it felt constrained on the basis of Johnson to rule that there had been no exhaustion because Daye's state argument had not explicitly referred to federal constitutional standards. Accordingly, the panel affirmed the dismissal of Daye's petition, without prejudice to his commencing a new habeas proceeding after the exhaustion of state court remedies.

Judge Lumbard, in dissent, concluded that the exhaustion requirement had been satisfied because Daye's state appellate brief had "repeatedly argued that the trial judge's questioning 'deprived the defendant of his right to a fair trial,' " and "[t]he New York courts have recognized that this right rests on constitutional and not merely state law grounds ...." Id. at 1160. Judge Lumbard found Johnson v. Metz distinguishable because Daye, unlike the petitioners in Johnson, had relied on New York authorities, e.g., People v. DeJesus, supra, that themselves relied on United States Supreme Court cases in support of the principle that there is a fundamental, constitutional right to a fair trial untainted by judicial partiality.

In light of the importance of having a consistent and workable standard by which the courts of the Circuit may judge whether or not state court remedies have been exhausted, a majority of the active judges of the Court voted for en banc rehearing of the panel's decision, limited to the question of exhaustion. We directed the parties to file additional briefs on this issue and invited them to address the question whether Johnson v. Metz should be overruled.

A. Exhaustion in General

The federal habeas corpus statute, 28 U.S.C. Secs. 2254(b) and (c), embodies the long-established principle that a state prisoner seeking federal habeas review of his conviction ordinarily must first exhaust available state...

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