Hawkins v. West, 851

• Decision Date: 04 May 1983
• Docket Number: No. 851,D,851
• Citation: 706 F.2d 437
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Joseph HAWKINS, a/k/a Joseph Davis, Appellant, v. Theodore WEST, Warden, Queens House of Detention, Appellee. ocket 82-2309.

Page 437

706 F.2d 437

Joseph HAWKINS, a/k/a Joseph Davis, Appellant, v. Theodore WEST, Warden, Queens House of Detention, Appellee.

No. 851, Docket 82-2309.

United States Court of Appeals Second Circuit.

Argued Feb. 15, 1983.

Decided May 4, 1983.

Howard B. Comet, Legal Aid Society, New York City (William E. Hellerstein, Legal Aid Society, New York City, on the brief), for appellant.

Joyce Andren, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Gerald J. Ryan, Asst. Atty. Gen., New York City, of counsel), for appellee.

Before LUMBARD, OAKES and NEWMAN, Circuit Judges.

OAKES, Circuit Judge:

In this case, decided by the district court after Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), but before Daye v. Attorney General, 696 F.2d 186 (2d Cir.1982) (en banc), we are called upon to determine whether a Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), claim that the evidence was insufficient to establish guilt beyond a reasonable doubt was adequately presented to the state courts under Daye to say that the habeas petitioner's claims were totally exhausted as required by Rose. The United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, not having the guidance of Daye, assumed that the teaching of Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979), and its semi-companion, Gayle v. LeFevre, 613 F.2d 21 (2d Cir.1980), required explicit labeling of a claim as federal to effectuate exhaustion. The court therefore denied the writ as premature under Rose and added the embellishment that Rose had sub silentio made the "futility" exception to the exhaustion requirement as espoused in, e.g., LaBruna v. U.S. Marshal, 665 F.2d 439 (2d Cir.1981), obsolete, inapplicable and no longer available to a petitioner seeking to overturn his state court conviction. We reverse on both the Daye point and the La Bruna issue which it may subsume.

BACKGROUND

The petitioner in this case, Joseph Hawkins, was convicted in late 1975 of four counts of first degree robbery, N.Y. Penal Law Sec. 160.15 (McKinney 1975), by the New York Supreme Court, Queens County, at a bench trial. The robbery took place inside an apartment building as Olga and Farkas Citron attempted to enter their apartment. Neither of them was able positively to identify Hawkins; Mr. Citron thought it was "possible" that Hawkins was one of the robbers, while Mrs. Citron was sure that Hawkins was not one of the robbers. The prosecution's chief witness was a security guard, Steven Jones, who testified that he observed the robbery from outside the building, through the lobby doors. Jones testified that he chased the robbers and was able to identify one of them as Hawkins. Hawkins on his own behalf testified that he had been at a friend's house at the time of the robbery and that he had left the house to pick up some food. He claimed that the two robbers--he identified two individuals in open court by name--told him to run because they were being pursued and that he did so. The friend's testimony supported Hawkins' version in some respects, but was in other respects inconsistent with it. Doubt was cast on the security guard's power to observe what he said he saw from the place at which he said he saw it; indeed, if one were to credit his testimony completely, one would wonder why he did not sooner do something more than look.

At the close of the evidence, but before the defense could sum up, the judge pronounced Hawkins guilty. The judge apologized for "jumping the gun" and allowed defense counsel to proceed. During the summation the judge expressed his concern that Hawkins had never protested his innocence or identified the other two individuals as the culprits until he took the stand. The judge then found Hawkins guilty. On appeal to the Appellate Division, Second Department, Hawkins claimed that his guilt was not established beyond a reasonable doubt and that the trial judge had drawn impermissible inferences from Hawkins' failure to protest his innocence. On the insufficiency of the evidence point, counsel argued only the facts and cited neither federal nor state constitutions or cases based on them. The Appellate Division reduced the sentence, but upheld the conviction without commenting on Hawkins' claims. People v. Hawkins, 63 A.D.2d 719, 405 N.Y.S.2d 128 (App.Div.1978).

The robbery conviction served as a predicate felony for Hawkins' sentencing in late 1980 as a second-felony offender on a sodomy charge. It was after that conviction that he filed a habeas corpus petition in federal court and Judge Platt denied the petition on the grounds that Hawkins had not exhausted his reasonable doubt claim because he did not "call attention to or frame his argument in terms of a federal constitutional claim," and noted that the Second Circuit has construed the exhaustion requirement narrowly, requiring federal claims to be raised expressly in state courts, citing Gayle v. LeFevre, and Johnson v. Metz, supra. Relying on the "total exhaustion" rule of Rose v. Lundy, Judge Platt dismissed the claim in its entirety, but granted leave to resubmit the exhausted claim. Hawkins moved for reargument, claiming that under LaBruna v. U.S. Marshal, 665 F.2d 439 (2d Cir.1981), the District Court should consider his insufficiency claim because it would be "futile" to pursue it any further in state court. Judge Platt read Rose v. Lundy as undercutting the futility exception to the exhaustion doctrine recognized in LaBruna, but entertained sufficient doubt on this point to issue a certificate of probable cause to appeal. While the appeal was pending this court decided Daye v. Attorney General, 696 F.2d 186 (2d Cir.1982) (en banc).

DISCUSSION

A. Exhaustion of the reasonable doubt claim. Under Daye, there is little question that Hawkins' brief in the Appellate

Division "fairly present[ed] ... the constitutional nature of his claim." 696 F.2d at 194. Although Hawkins cited neither state nor federal cases, the precis of his first point stated that "[t]he people failed to prove beyond a reasonable doubt that appellant robbed Mr. and Mrs. Citron." The first sentence of the closing paragraph on the reasonable doubt point asserted that "[t]he prosecution's case fell quite short of that required to prove appellant's guilt beyond a reasonable doubt." Certainly this qualifies as an "assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution." Id. The right not to be convicted except upon proof establishing guilt beyond a reasonable doubt was not "novel" or in the process of being articulated by the federal courts at the time Hawkins appealed in 1976. See In re Winship, 397 U.S. 358, 361-362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). Any uncertainty that Hawkins' reasonable doubt claims failed to alert the state courts to his constitutional claim is eliminated by the reasonable doubt section of his brief, which consisted entirely of a discussion of the testimony and factual circumstances he thought insufficient to establish his guilt beyond a reasonable doubt and therefore qualifies as a fair presentation of the constitutional claim under Daye's requirement of an "allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Daye, 696 F.2d at 194.

The State argues, however, that the claim is not exhausted because Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), established a new standard of review that the state court could not have been aware of when it decided Hawkins' appeal in 1978. And it is true that Jackson held that on federal habeas review of state convictions, where a petitioner asserts that the evidence was insufficient to establish guilt beyond a reasonable doubt, the proper standard of review was not the "no evidence" principle of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), but instead was whether "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324, 99 S.Ct. at 2791 (citation omitted). But Jackson did not announce a new constitutional right; it only altered the constitutional standard of review to ensure that the right previously recognized in Winship would be adequately protected, the necessary threshold showing, so to speak. That is to say, the result in Jackson flowed from Winship. As the Court said in Jackson, "After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." It added: "Contrary to the suggestion in the opinion concurring in the judgment, the criterion announced today as the constitutional minimum required to enforce the due process right established in Winship is not novel." 443 U.S. at 319 n. 12, 99 S.Ct. at 2789 n. 12 (citing cases).

We...