Gayle v. LeFevre

• Citation: 613 F.2d 21
• Decision Date: 11 January 1980
• Docket Number: D,No. 850,850
• Parties: Keith GAYLE, Petitioner-Appellant, v. Eugene LeFEVRE, Superintendent, Clinton Correctional Facility, Defendant-Appellee. ocket 78-2158.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 21

613 F.2d 21

Keith GAYLE, Petitioner-Appellant, v. Eugene LeFEVRE, Superintendent, Clinton Correctional Facility, Defendant-Appellee.

No. 850, Docket 78-2158.

United States Court of Appeals, Second Circuit.

Argued April 10, 1979.

Decided Jan. 11, 1980.

Barry Bassis, New York City (The Legal Aid Society, of counsel), for petitioner-appellant.

Susan Picariello, Asst. Dist. Atty., Brooklyn, N. Y. (Eugene Gold, Dist. Atty., Kings County, Brooklyn, N. Y., of counsel), for respondent-appellee.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge. ^*

PIERCE, District Judge:

The appellant, a prisoner, appeals from the dismissal of his pro se application for a writ of habeas corpus by the District Court for the Eastern District of New York (Hon. Edward R. Neaher, Judge ). Appellant was convicted of murder in the second degree after a jury trial in Supreme Court, Kings County. The conviction was affirmed by the Appellate Division, Second Department, without opinion, on December 13, 1976, and leave to appeal to the New York Court of Appeals was denied on January 24, 1977.

The habeas corpus proceeding was begun on April 5, 1977. The appellant's pro se application was dismissed by the District Court without a hearing by Memorandum Order dated September 14, 1978. In his petition, appellant contended that the trial judge engaged in biased conduct during the course of the trial, thereby depriving appellant of a fair trial. He also contended that the trial court erred when it denied his motion to suppress certain post-arrest statements made by appellant since he asserts he had not been properly informed of his constitutional rights prior to being interrogated.

Because we find that petitioner has not exhausted the state remedies available to him, we do not reach the merits of petitioner's claim. The decision of the court below is affirmed.

The threshold issue presented here is whether the requirement of exhaustion of the remedies available in state court set forth in Title 28, United States Code, Section 2254(b), has been met by this appellant. See Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). ¹

There is no dispute that appellant, with the assistance of counsel, presented to the state appellate courts, Inter alia, his claim that the conduct of the trial judge deprived him of a fair trial (p. 16, Point I, Brief for Defendant-Appellant, Appellate Division, Second Department) and his claim that his post-arrest statements should have been suppressed (p. 36, Point II). However, an examination of the appellant's brief in the Appellate Division reveals that federal constitutional claims, as such, were not raised in that court. ² Such claims were expressly raised for the first time in the present petition for a writ of habeas corpus.

In Johnson v. Metz, 609 F.2d 1052, at 1054 (2d Cir. 1979), this Court, presented with similar circumstances, reaffirmed the standard applicable here, a standard enunciated by prior decisions with respect to the issue of exhaustion of state remedies in actions involving a variety of claims. In Johnson, the appellant had asserted a claim in the state appellate courts that the trial judge, by prejudicial conduct and constant interference, had denied appellant a fair and impartial trial. Appellant had not, however, expressly asserted a claim regarding his federal constitutional rights.

As stated therein by Judge Gurfein:

"The question of fair trial in relation to the overall conduct of the trial judge has in the past been stated in terms of either state law or the supervisory power of the particular court. In the absence of a claim of a federal Constitutional violation, we must consider whether the New York appellate courts had a fair opportunity to consider the conduct of the trial judge in this case as violating fundamental rights guaranteed by the Federal Constitution." Id. ³ In Johnson, this Court found that considerations of "federalism . . . as a basis for the doctrine of exhaustion of state remedies (are) particularly cogent in cases such as this where the conduct of the state trial judge is at issue." Id. at 1055. The conclusion of the Court was that "(o)n the basis of precedent, therefore, the construction by this circuit of the meaning of the exhaustion doctrine leads us to conclude that the New York courts have never been given an opportunity to consider the really serious question of whether the pervasive conduct of the trial judge in this case . . . amounted to a violation of federal constitutional due process." Id. at 1055.

Presented with the same issue in the instant case, we similarly hold that the federal constitutional issues, raised as such by appellant for the first time in federal court, have not been presented to the state courts for appellate review and, therefore, appellant has failed to meet the exhaustion requirement of section 2254(b), Title 28, United States Code. ⁴ Therefore, we decline at this time to address the merits of petitioner's application.

Affirmed.

OAKES, Circuit Judge (dissenting):

With all respect I must dissent.

It seems to me this defendant's claim that he had been denied his right to a "fair trial" must be treated as equivalent to a claim that he had been denied due process of law. Certainly, the "original understanding" of "due process of law" embodies nothing if it does not embody the right to a fair trial. See, e. g., L. Levy, Origins of the Fifth Amendment 164-70 (1968) (discussing the trial of John Udall in 1590).

More importantly, the New York courts themselves, regardless of what once may have been the case, now treat or should treat, a claim of denial of fair trial as synonymous with an assertion of constitutional due process rights. In People v. Mees, 47 N.Y.2d 997, 998, 420 N.Y.S.2d 214, 215, 394 N.E.2d 283, 284 (1979), the Court of Appeals stated that "appellant's claim that the intrusion of the Trial Judge deprived him of his constitutional right to a fair trial is not subject to harmless error analysis." And in People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975), the court asserted:

(O)ur discussion of the effect to be given constitutional error (violation of the Fifth Amendment) should not overlook a parallel, and in some instances overlapping doctrine, Also of constitutional proportion, namely, the right to a fair trial. Not only the individual defendant but the public at large is entitled to assurance that there shall be full observance and enforcement of the cardinal right of a defendant to a fair trial. The appellate courts have an overriding responsibility, never to be eschewed or lightly to be laid aside, to give that assurance. . . . The right to a fair trial is self-standing and proof of guilt, however(,) overwhelming, can never be permitted to negate this right.

Id. at 237-38, 326 N.E.2d at 791, 367 N.Y.S.2d at 218-19 (emphasis added). If the right to a fair trial were not "cardinal," I. e., "of constitutional proportion," as stated in Crimmins, it could not be "self-standing," rendering harmless error analysis inapplicable.

The fact that at least some of the New York courts view a "fair trial" claim as a constitutional one is supported by numerous recent cases. See People v. DeJesus, 42 N.Y.2d 519, 523, 399 N.Y.S.2d 196, 198-99, 369 N.E.2d 752, 755 (1977) ("Neither the nature of our adversary system . . . nor the constitutional command to afford a fair trial inhibit a Trial Judge from assuming an active role in the resolution of the truth . . . .") (citations omitted); People v. Bennett, 65 A.D.2d 801, 801, 410 N.Y.S.2d 304, 305 (1978) ("The guarantee of a fair trial cannot be thus flouted, and even overwhelming proof of guilt cannot obviate the fundamental right to due process . . . .") (citation omitted); People v. Brown, 62 A.D.2d 715, 717, 405 N.Y.S.2d 691, 693 (1978) ("In our opinion the record is not so replete with error by the prosecutor and the court as to have denied defendant a fair trial under the Constitution.").

To be sure, there are many older New York cases that may be characterized as viewing the fair trial right as one growing out of the common law. See, e. g., People v. Dovico, 6 A.D.2d 457, 458, 179 N.Y.S.2d 379, 380 (1958) ("From the very beginning of the common law it has been recognized that a fair trial is one of the most basic and fundamental essentials of our judicial process and no matter how strong the evidence pointing to guilt a judgment of conviction must be reversed if the trial was not a fair one."). But even if the right is so viewed, it is no mere rule of housekeeping imposed by appellate courts; it is a common law rule so fundamental as to be embodied in the due process clauses of both the state and federal constitutions. U.S.Const. amends. V, XIV; N.Y. Const. art. I, § 6; See Sharkey v. Thurston, 268 N.Y. 123, 126, 196 N.E. 766, 767 (1935) ("It is a fundamental rule of our common law, embodied in the Constitutions of our State and Nation, that no person may be adjudged guilty and punished upon a charge of wrongful conduct without a hearing. . . . (N)o man may be both accuser and judge."). ¹ And it is worth noting that the state and federal constitutions are in this respect identical in content. See Central Savings Bank v. City of New York, 280 N.Y. 9, 19 N.E.2d 659 (1939); People v. Budd, 117 N.Y. 1, 22 N.E. 670, 674 (1889), Aff'd, 143 U.S. 517, 12 S.Ct. 468, 36 L.Ed. 247 (1892).

I do not see how a claim that a defendant has been deprived of a fair trial by excessive intrusion of the trial judge differs, for example, from a claim that he has been denied his constitutional rights when found guilty in the absence of proof beyond a reasonable doubt. Such a claim rests on the due process clause. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). So does the right to a fair trial. Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923).

On this basis, it seems to me that ap...