Foran v. Metz

• Decision Date: 09 January 1979
• Docket Number: No. 78 Civ. 81 (JMC).,78 Civ. 81 (JMC).
• Citation: 463 F. Supp. 1088
• Parties: John FORAN, Petitioner, v. Hon. Paul METZ, as Superintendent of Great Meadow Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

463 F. Supp. 1088

John FORAN, Petitioner, v. Hon. Paul METZ, as Superintendent of Great Meadow Correctional Facility, Respondent.

No. 78 Civ. 81 (JMC).

United States District Court, S. D. New York.

January 9, 1979.

COPYRIGHT MATERIAL OMITTED

Robert E. Green, Forest Hills, N. Y., for petitioner.

Louis J. Lefkowitz, Atty. Gen. of the State of N. Y., New York City (Robert J. Schack, Asst. Atty. Gen., New York City, of counsel), for respondent.

MEMORANDUM DECISION

CANNELLA, District Judge.

Petition for a writ of habeas corpus is denied. 28 U.S.C. § 2254.

Petitioner is presently confined at Auburn Correctional Facility pursuant to a judgment of the New York County Supreme Court convicting him, after a jury trial, of attempted murder. On February 18, 1975, petitioner was sentenced to a term of imprisonment of seven to twenty-one years. The judgment of conviction was affirmed, without opinion, by the Appellate Division of the New York Supreme Court and leave to appeal to the New York Court of Appeals was denied.

Petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, claiming that his state court trial was unconstitutional because:

1. The Court refused to instruct the jury that a reasonable doubt of the guilt of petitioner might result from the lack of evidence against him, in violation of the Fourteenth Amendment.

2. The use of evidence against petitioner seized from the vehicle in which he was a passenger after he was illegally detained by the police for two hours, without charges or probable cause, violated his Constitutional rights secured by the Fourth Amendment.

3. A twenty-five month delay from his arrest in bringing petitioner to trial, as well as delays in excess of 180 days and 120 days, respectively, from his demand to be brought to trial and from his production in the jurisdiction from the institution where he was serving a Federal sentence, deprived petitioner of his Constitutional right to a speedy trial secured by the Sixth Amendment.

Petition for a Writ of Habeas Corpus, at 14. The facts pertinent to each of these claims are incorporated into the discussion below.

Jury Instructions

To prevail on his claim that the jury instructions in the state court trial invalidated his conviction, petitioner must establish "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the petitioner by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

In this regard, the trial transcript¹ discloses that following the judge's charge, petitioner took exception to that portion of the instructions defining "reasonable doubt." Petitioner requested that the jury be instructed "that a reasonable doubt may arise from the evidence presented or from the lack of evidence presented by the Prosecution."² The trial court denied this request but did charge further on the definition of reasonable doubt.³

In United States v. Caruso, 358 F.2d 184 (2d Cir.), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966), the United States Court of Appeals for the Second Circuit confronted the precise alleged error that petitioner asserts in support of his request for a writ of habeas corpus. In Caruso, on direct appeal from a federal conviction, the late Judge Anderson rejected the argument as follows:

The remaining question raised on this appeal concerns the refusal of the trial judge to charge that reasonable doubt is a doubt which, in the exercise of reason, may arise not only from a consideration of all the evidence in the case but also from a lack of evidence. It would not have been error for the court to charge as requested, but this court has not made it a requirement that the trial judge, in charging on reasonable doubt, include the words "from a lack of evidence" or "from a want of evidence." United States v. Rinaldi, 301 F.2d 576, 578 (2d Cir. 1962). The charge as a whole correctly conveyed to the jury the concept of reasonable doubt.

Id. at 186-87. Similarly, in the instant case, the Court concludes that there was no error in the state court jury instructions on the concept of reasonable doubt.

Fourth Amendment

On September 21, 1972, at 5:00 a. m., the vehicle in which petitioner was a passenger was stopped by several police cars in Central Park. At the time, petitioner was seated in the front passenger's seat, with codefendant Cumella in the driver's seat, and codefendant Mooney in the rear passenger seat. The police conducted an on-the-spot search of the car, but upon discovering no evidence, brought the car and its three occupants to the local police station for further investigation. Approximately two hours later, they again searched the car and this time found a spent .38 cartridge shell on the floor just behind the driver's seat. The police then arrested the petitioner and his two companions. Sometime thereafter, they learned that the car was registered to and owned by codefendant Cumella's wife.

Pursuant to New York law, Justice Harold Birns presided over a three-day pretrial hearing on the motions by petitioner and his codefendants to suppress the cartridge shell found in the car. Movants claimed that the evidence had been seized without a warrant and without probable cause, in violation of the fourth amendment. On September 3, 1974, Justice Birns denied the motion to suppress. At the trial, before Justice Evans, the cartridge shell was received in evidence over petitioner's objection. Tr. 958-59. On appeal, petitioner renewed this objection. His brief to the Appellate Division contains nineteen pages of argument that the search of the car violated the fourth amendment. See Brief for Appellant Foran at 3-5, 24-40, People v. Mooney, 53 A.D.2d 1065, 385 N.Y.S.2d 694 (1st Dep't 1976).

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court sharply curtailed federal habeas review of state convictions by stating:

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

Id. at 482, 96 S.Ct. at 3046 (footnote omitted). Petitioner argues that Stone does not control the outcome here because his opportunity to litigate his fourth amendment claim in the state courts "cannot be classed as `fair' where the Court makes a finding that the police were justified in detaining suspects and their vehicle, to await the coming of day light in order to conduct a fruitful search." Petitioner's Reply Memorandum of Law, at 5.⁴ What petitioner, in effect, suggests is that under Stone, a federal court may characterize state court procedures as "unfair," and hence review the fourth amendment claim, where the outcome is erroneous. The Second Circuit has emphatically rejected this interpretation: "we have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts." Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). According to the court in Gates, the merits of a habeas petitioner's fourth amendment claim are irrelevant if he had an opportunity to litigate it fully and fairly. The Court finds that Foran was given that opportunity. Six police officers testified at the three-day suppression hearing, the transcript of which comprises 417 pages. Petitioner renewed his objections at trial and on appeal and cannot complain that he was in any way precluded from utilizing state court procedures. Under Stone and Gates, therefore, the Court may not review the merits of petitioner's fourth amendment claims.

Speedy Trial

On September 21, 1972, petitioner was arrested, arraigned on a complaint and admitted to bail. The grand jury proceedings initially were delayed because the complaining witness was still in the hospital. The case was presented to the Grand Jury in October 1972, but no bill was filed. The case was presented to the Grand Jury again and, on March 30, 1973, petitioner and his codefendants were indicted for attempted murder and assault.

On April 11, 1973, petitioner was arraigned on the indictment and entered a plea of not guilty. On May 11, 1973, petitioner moved (1) to dismiss the indictment, (2) for a bill of particulars and other discovery, and (3) for inspection of the grand jury minutes. On June 29, 1973, the discovery aspects of petitioner's motion were granted in part by Justice Sutton and the prosecutor was given thirty days to comply. On July 9, 1973, Justice Sutton denied petitioner's motion to inspect the grand jury minutes and dismiss the indictment.

Meanwhile, petitioner was indicted on unrelated federal charges. These proceedings culminated on September 12, 1973, when petitioner was sentenced to a seven-year term of imprisonment, following his conviction on a plea of guilty to extortion in the United States District Court for the Eastern District of New York. Thereupon, petitioner was remanded to the federal correctional facility in Lewisburg, Pennsylvania, for execution of his sentence. Petition for a Writ of Habeas Corpus, at 5.

That same day, September 12, 1973, petitioner's state court case appeared on the calendar. Understandably, petitioner did not appear. The prosecutor informed the court of petitioner's federal sentence and that the People would attempt to secure petitioner's presence for trial by a writ of habeas corpus ad prosequendum. See N.Y. Crim.Proc.Law § 580.30 (McKinney 1971). In December 1973, federal authorities informed the state prosecutor that they would not honor the writ, allegedly because of overcrowding at the New York City federal detention facility. The prosecutor informed the state court of...