Gonzalez v. Sullivan

• Decision Date: 28 May 1991
• Docket Number: No. 926,D,926
• Citation: 934 F.2d 419
• Parties: Ernesto GONZALEZ, Petitioner-Appellant, v. James E. SULLIVAN, Respondent-Appellee. ocket 90-2455.
• Court: U.S. Court of Appeals — Second Circuit

Page 419

934 F.2d 419

Ernesto GONZALEZ, Petitioner-Appellant, v. James E. SULLIVAN, Respondent-Appellee.

No. 926, Docket 90-2455.

United States Court of Appeals Second Circuit.

Argued Jan. 16, 1991.

Decided May 28, 1991.

Julius M. Wasserstein, New York City, for petitioner-appellant.

Moira E. Casey, Asst. Dist. Atty., Kings County, Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty., Jay M. Cohen, Asst. Dist. Atty., Kings County, Brooklyn, N.Y., of counsel), for respondent-appellee.

Before OAKES, Chief Judge, CARDAMONE and WALKER, Circuit Judges.

CARDAMONE, Circuit Judge:

We have before us an appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, J.) denying the petition of Ernesto Gonzalez for a writ of habeas corpus made pursuant to 28 U.S.C. Sec. 2254. The adage "forewarned is forearmed" means essentially that in order to respond one must be alerted. Decisive to our holding is that a state court must be given fair warning of the federal nature of a petitioner's claim before it can be said to be exhausted. From the dismissal of his petition Gonzalez raises four claims: (1) the prosecutor's summation was prejudicial, (2) putting him in a lineup before arraignment on the charge for which he was arrested delayed the time when his right to counsel attached, violating his due process rights, (3) delaying the arraignment caused his right to counsel to attach at the time of the lineup, and (4) the lineup was unduly suggestive.

All these claims are procedurally barred: The summation claim is barred at least in part because petitioner failed to make an objection at trial sufficient to preserve most of his claims under state law; and the other three claims are barred because petitioner failed to raise them on his direct appeal in the state courts. Petitioner has failed to show cause for these defaults or actual prejudice arising from them. These defaults constitute independent and adequate state grounds that prevent federal review of these issues on a habeas corpus application. To the extent the summation claim is not procedurally barred, we think it is an extremely close case as to whether petitioner exhausted his state remedies. But, because our decisions regarding exhaustion contain language under which we could arguably conclude petitioner exhausted this claim by fairly presenting it to the New York State courts, we proceed to consider the summation claim on the merits, and conclude it has no merit. Accordingly, we affirm.

FACTS

Petitioner was convicted of two counts of murder in the second degree in New York State Supreme Court, Kings County, on November 14, 1980. The crimes occurred on June 17, 1979 when Gonzalez and two accomplices entered a Brooklyn grocery store and shot and killed the owner and a store worker. The police stopped Gonzalez and one of the accomplices on June 20, 1979 at 9:45 p.m. because the men and the automobile they were riding in matched a description of the murder suspects. When the police discovered a gun in the car, Gonzalez was arrested on a gun charge. Early on the morning of June 21, 1979 the detective assigned to the murder case called the District Attorney's Office, reported the arrest, and said a lineup was needed. Due to the temporary unavailability of a witness to the murders and because of the lack of "fillers" for the lineup, some delay ensued. When the detective signed Gonzalez out of police custody in the precinct's Central Booking area to take him to the lineup, he was being processed on the gun charge. At the lineup held in the District Attorney's office at 12:42 p.m. the witness identified petitioner as one of the men she saw fleeing the scene of the crime.

Gonzalez was arraigned on June 22, 1979. When he moved to suppress the lineup identification on the grounds it was improperly suggestive, the New York court held a Wade hearing and denied the motion. Although his first trial ended in a mistrial, Gonzalez was convicted at his second trial of two counts of murder in the second degree. He appealed the conviction to the Appellate Division of the New York State Supreme Court, Second Department, arguing that he was denied a fair trial because the prosecutor's closing summation had been inflammatory and his sentence of two consecutive terms of 25 year to life was excessive. The Appellate Division affirmed the convictions, but modified the sentences to run concurrently. With respect to the summation claim, the Appellate Division stated:

Although several of the prosecutor's remarks were better left unsaid, defendant failed to register an appropriate protest sufficient to preserve a question of law as to most of them, and we decline to exercise interest of justice jurisdiction inasmuch as we do not believe that they operated to deprive the defendant of a fair trial.

People v. Gonzalez, 102 A.D.2d 895, 477 N.Y.S.2d 66 (2d Dep't 1984). The New York State Court of Appeals denied leave to appeal on August 27, 1984.

Gonzalez then moved in the Supreme Court, Kings County, for an order vacating his conviction on essentially the same four grounds that he raises in the instant habeas petition. The motion to vacate was denied on September 4, 1985 because the claims regarding the lineup and arraignment, the state court noted, were procedurally barred under state law because they had not been raised on direct appeal, the summation claim had already been determined on direct appeal, and all the claims lacked merit. The Appellate Division denied Gonzalez' motion for leave to appeal the denial of the motion to vacate on November 4, 1985.

On May 19, 1988 Gonzalez filed the present petition. After holding hearings on the arraignment and lineup issues, the district court dismissed it on the merits, concluding Gonzalez had no right to counsel at the lineup, there was no evidence the delay was designed to prevent his right to counsel from attaching, the summation did not deny Gonzalez a fair trial, and the lineup was not unduly suggestive.

DISCUSSION

I Procedural Defaults

Habeas review has continued to present problems of ambiguity with respect to whether a state court rendered its judgment on defendant's procedural default. The Supreme Court has recently resolved the problem ruling that where a state court rests its decision primarily on federal law, a federal court may review it "unless the state court's opinion contains a ' "plain statement" that [its] decision rests upon adequate and independent state grounds.' " Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989) (quoting Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983)). Even where there is a procedural default, as here, federal consideration of defendant's claim is proper "unless the last state court rendering a judgment in the case ' "clearly and expressly" ' states that its judgment rests on a state procedural bar." Id. at 1043, 103 S.Ct. at 3478) quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985). In the instant case, the Harris rule is not an issue because the state court ruled adversely to petitioner on one of his claims--plainly stating that its decision rested on independent state grounds--and further because petitioner failed to raise his other federal claims on direct appeal in state court.

Following the "well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts," see Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977), (citing Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935)), the Supreme Court has held that a procedural waiver under state law sufficient to prevent review of the defendant's substantive claim in the state courts also constitutes an independent and adequate state ground that bars federal consideration of the substantive claim on habeas corpus. Id. at 87, 97 S.Ct. at 2506. Thus, under Sykes and its progeny a petitioner seeking habeas relief may not raise a claim upon which he has procedurally defaulted in the state courts unless he is able to show cause for the default and prejudice resulting therefrom. Wainwright, 433 U.S. at 87-91, 97 S.Ct. at 2506-08; Engle v. Isaac, 456 U.S. 107, 124-35, 102 S.Ct. 1558, 1570-75, 71 L.Ed.2d 783 (1982); Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989).

A. The Lineup and Arraignment Claims

Petitioner admits that the lineup and arraignment claims "were procedurally barred in New York, because his initial post-conviction attorney did not raise them on direct appeal to the Appellate Division." Gonzalez makes no attempt to show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Instead--in what appears to be an attempt to show cause for the default--petitioner's reply brief ascribes the procedural default to an error of counsel. In taking this position, he invokes the deliberate and knowing waiver standard originally adopted in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), apparently unaware of the fact that Wainwright abandoned that portion of Fay. 433 U.S. at 87-91, 97 S.Ct. at 2506-08. In any event, attorney error that does not rise to the level of ineffective assistance is not cause for a petitioner's procedural default. See Murray, 477 U.S. at 488, 106 S.Ct. at 2645. To the extent that petitioner's reliance on counsel error may be an invocation of an ineffective assistance of counsel claim, this claim has not been presented to the state courts; hence we may not consider it. See Duckworth v. Serrano, 454 U.S. 1, 2-4, 102 S.Ct. 18, 18-19, 70 L.Ed.2d 1 (1981) (per curiam).

B. The Summation Claim

Petitioner does not contest that the summation claim is also...