Forman v. Smith, No. 869

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore FEINBERG, Chief Judge, NEWMAN and KEARSE; NEWMAN; The principal focus of the actual prejudice standard is upon the significance of the evidence admitted as a result of the constitutional error in relation to all the other evidence in the case.
Citation633 F.2d 634
PartiesEdward C. FORMAN, Petitioner-Appellee, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent- Appellant. ocket 80-2024.
Docket NumberNo. 869,D
Decision Date08 October 1980

Page 634

633 F.2d 634
Edward C. FORMAN, Petitioner-Appellee,
v.
Harold J. SMITH, Superintendent, Attica Correctional
Facility, Respondent- Appellant.
No. 869, Docket 80-2024.
United States Court of Appeals,
Second Circuit.
Argued March 4, 1980.
Decided Oct. 8, 1980.

James L. Kennedy, Asst. Atty. Gen., Buffalo, N. Y. (Robert Abrams, Atty. Gen. and Judith Blake Manzella, Asst. Atty. Gen., Buffalo, N. Y., on brief), for respondent-appellant.

John J. Privitera, Washington, D. C. (Tigar & Buffone, Washington, D. C., on brief), for petitioner-appellee.

Before FEINBERG, Chief Judge, NEWMAN and KEARSE, Circuit Judges.

NEWMAN, Circuit Judge:

The exercise of habeas corpus jurisdiction by a federal district court to assess the validity of a criminal conviction obtained in a state court creates an inevitable tension between two important principles: the observance of constitutional protections in the enforcement of criminal law and the maintenance of appropriate authority within the separate spheres of the state and federal court systems. That tension is especially strained when a petitioner convicted in state court seeks relief from a federal court asserting a constitutional claim that was rejected by the state court system not on its merits, but solely for lack of proper procedural presentation. This case presents that problem in the context of a constitutional

Page 635

claim raised in the state courts on a collateral attack upon a conviction and rejected because it had been omitted from the issues on direct appeal. Notwithstanding that omission, the District Court for the Western District of New York (John T. Curtin, Chief Judge) considered the claim on its merits, upheld it, and set aside the conviction. Forman v. Smith, 482 F.Supp. 941 (W.D.N.Y.1979). We reverse, concluding that under the prevailing standard announced by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), as applied to the circumstances of this case, the conviction may not be overturned by a federal court.

I.

In the middle of the night of May 15, 1972, Archie Gilliland was shot to death at the home of Edward Forman, the petitioner, and Forman's wife, Florence McClain, in Buffalo, New York. When the police arrived, McClain was present in the home. She confessed to the murder and was arrested and charged with the crime. The police located Forman early the following morning at a house across the street from his residence. He was questioned, but, after denying any knowledge of the shooting, was released.

About a week later, McClain recanted her confession and expressed her belief that her husband had committed the murder. Her story was corroborated by a polygraph test, and by another individual, Willie Harris, who turned in to the police a gun that he stated had been given to him by Forman on the morning after the shooting. McClain was then released, and Forman became the prime suspect. He was arrested four months later by the Buffalo police on three outstanding warrants, two for traffic offenses and one for possession of a dangerous weapon. These warrants were based on prior incidents unrelated to the shooting of Gilliland. While Forman was in custody, he was also charged with hindering the prosecution and tampering with physical evidence in the Gilliland investigation, mainly on the basis of the statement by Willie Harris. He was questioned at this time after being advised of his rights, but refused to answer any questions. The next day, September 20, 1972, he was arraigned on the hindering and tampering charge. At the arraignment hearing, Forman was represented by James Robinson, Jr., a lawyer whom he had retained in connection with the traffic and weapons charges.

Shortly thereafter, both Forman and his wife were indicted for second-degree murder. Following his indictment, Forman was questioned twice during the same evening by several members of the Buffalo police force, including Lt. Leo J. Donovan. On both occasions he was again advised of his rights. During the first round of questioning, Forman denied everything; 1 during the second round, however, he told two different stories: first, that Gilliland had been shot by John Adams; and second, that Gilliland had been shot when a rifle Forman and Adams had been passing between them accidentally discharged. Forman gave no indication during either of these sessions that he was represented by counsel. It was disputed whether Lt. Donovan was present at the arraignment hearing, and whether he knew that Forman had an attorney. Judge Curtin found, after an evidentiary hearing, that Forman was never asked by the officers whether he was represented by counsel, and never volunteered that he was. The Court also found that Lt. Donovan was aware at the time of questioning that Forman had been arraigned on the tampering charge and that he assumed Forman was represented by counsel. Forman v. Smith, supra, 482 F.Supp. at 945.

Prior to Forman's trial in state court, a Huntley hearing 2 was held to determine the admissibility of Forman's statement to the police. Forman was represented by a

Page 636

second attorney at this hearing; 3 no mention was made of Forman's prior representation by Robinson. The state court ruled that Forman's statement was voluntarily made after a valid waiver of his rights. At trial, the statement was admitted into evidence. Forman testified that his statement to the police was a lie designed to protect his wife, and that Gilliland had been shot by Adams.

A substantial amount of evidence, in addition to Forman's statement, was presented at the trial to prove that Forman had murdered Gilliland. Willie Harris testified, as he had previously told the police, that Forman had given him a rifle on the morning after the shooting. He also testified that Forman had told him that morning that he, Forman, had killed Gilliland. The rifle that Harris had turned in to the police was identified by a ballistics expert as the rifle that had fired the fatal bullet. Another witness, Henry Williams, testified that Forman had offered him fifty dollars to kill Gilliland, that Forman had described the shooting of Gilliland to him, and that Forman had called him from Detroit, threatening to kill him as he had killed Gilliland if Williams cooperated with the police. A boarder at the Forman-McClain residence, Christine Walton, testified that Forman had pointed Gilliland out to her, saying that Gilliland was the man who had previously shot and wounded him and that he, Forman, would try to get even with Gilliland later. She identified the rifle as having been in Forman's possession before the murder, and also testified that, when she went to sleep at 11:00 on the night of the murder, Forman had been in his house. McClain testified that she had been awakened on the night of the murder by the sound of a gunshot, and saw Forman standing in the hall with a gun in his hand. She also identified the rifle in evidence as Forman's. 4

The jury returned a verdict of guilty on the charge of second-degree murder against Forman and acquitted his wife. Forman appealed, and the Appellate Division affirmed the conviction without a written opinion. People v. Foreman (sic), 45 App.Div.2d 820, 358 N.Y.S.2d 353 (4th Dept. 1974). Leave to appeal to the Court of Appeals was denied, and the United States Supreme Court denied Forman's petition for certiorari, 420 U.S. 1007, 95 S.Ct. 1451, 43 L.Ed.2d 765 (1975), ending Forman's opportunity for direct review of his conviction.

Forman then filed his habeas corpus petition in the United States District Court, alleging that admission of his statement violated his Sixth Amendment rights. The parties agreed to stay this proceeding until Forman had exhausted the state remedy available to him under N.Y.Crim.Proc.Law § 440.10 (McKinney 1976) (motion to vacate judgment). Forman then applied under § 440.10 to the state trial court. That court, acting pursuant to § 440.10(2)(c), denied his application, finding that the Sixth Amendment claim was an issue that was not, but could have been, raised on direct appeal. 5 When leave to appeal from that

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ruling was denied, the District Court lifted the stay and conducted an evidentiary hearing.

The District Court recognized that the Supreme Court has at different times announced two distinct standards for determining when a claim may be considered in a federal habeas corpus proceeding notwithstanding a state court determination that the claim is no longer available for failure to comply with state court procedures. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court articulated the "deliberate by-pass" test, permitting a federal habeas court to deny relief to a petitioner who has "deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id. at 438, 83 S.Ct. at 848. More recently, the Court announced the "cause and prejudice" test, barring a federal habeas court from considering a claim not asserted at trial in compliance with state procedural requirements, "absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, supra, 433 U.S. at 84, 97 S.Ct. at 2505 (1977). Because of the uncertainty as to which test applied to a claim not presented to the state courts on direct review, the District Court applied both tests in the alternative.

Under Noia, Judge Curtin concluded that there had been no deliberate by-pass in the failure to raise Forman's Sixth Amendment claim on appeal. Under Sykes, the Court found that there was cause for Forman's procedural default and prejudice resulting from it. The basis for the Court's finding of cause was a statement made by Lt. Donovan at the Huntley hearing, which was deemed to be misleading. At that hearing, Donovan had testified that the charges on which Forman...

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63 practice notes
  • Udzinski v. Kelly, No. CV 89-3587.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 11, 1990
    ...on direct appeal from the judgment of conviction or on a post-judgment motion in the court of original jurisdiction. Forman v. Smith, 633 F.2d 634 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cappiello v. Hoke, 698 F.Supp. 1042 (E.D.N.Y.), aff'd, 852 F.......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 15, 1982
    ...1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 7, 1983
    ...Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir.1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 4......
  • Johnson v. Scully, No. 81 CV 1863
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 27, 1983
    ...similar case of Daye v. Attorney General of the State of New York, 663 F.2d 1155 (2d Cir.1981). And previously, in Forman v. Smith, 633 F.2d 634 (2d Cir.1980), the court ruled that specific claims not raised on a State appeal may be forfeited by operation of State procedural rules (in that ......
  • Request a trial to view additional results
63 cases
  • Udzinski v. Kelly, No. CV 89-3587.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 11, 1990
    ...on direct appeal from the judgment of conviction or on a post-judgment motion in the court of original jurisdiction. Forman v. Smith, 633 F.2d 634 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cappiello v. Hoke, 698 F.Supp. 1042 (E.D.N.Y.), aff'd, 852 F.......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 15, 1982
    ...1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 7, 1983
    ...Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir.1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 4......
  • Johnson v. Scully, No. 81 CV 1863
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 27, 1983
    ...similar case of Daye v. Attorney General of the State of New York, 663 F.2d 1155 (2d Cir.1981). And previously, in Forman v. Smith, 633 F.2d 634 (2d Cir.1980), the court ruled that specific claims not raised on a State appeal may be forfeited by operation of State procedural rules (in that ......
  • Request a trial to view additional results

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