Johnson v. Scully

Decision Date27 April 1983
Docket Number76 CV 442 (ERN).,No. 81 CV 1863,81 CV 1863
PartiesJesse JOHNSON and Cynthia Hall, Petitioners, v. Charles J. SCULLY, Warden, Green Haven Correctional Facility; and Phyllis Durrly, Correctional Superintendent, Bedford Hills Correctional Facility, Respondents.
CourtU.S. District Court — Eastern District of New York

Jeffrey A. Rabin, Brooklyn, N.Y., for petitioners.

Elizabeth Holtzman, Dist. Atty., Kings County, by Shulamit Rosenblum, Asst. Dist. Atty., Brooklyn, N.Y., for respondents.


NEAHER, District Judge.

In 1973, petitioners Jesse Johnson and Cynthia Hall were convicted of criminal possession and sale of heroin in a jury trial in New York State Supreme Court, Kings County. Sentenced to lengthy prison terms, their convictions were affirmed without opinion by the Appellate Division, 46 A.D.2d 739, 361 N.Y.S.2d 325 (2d Dept. 1974), the Court of Appeals denied leave to appeal on February 4, 1975, and the U.S. Supreme Court denied certiorari, 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975).

In their first joint petition for habeas corpus, 28 U.S.C. § 2254, Johnson and Hall both alleged that the prejudicial conduct and rulings of the trial judge denied them a fair trial as protected by the due process clause. Finding their claims meritorious, on February 5, 1979, this Court granted their habeas petitions, and ordered that they be retried within sixty days of that Order or be released. The February 5, 1979 Order, unpublished at that time, follows as Appendix "A" to the present Order.

Respondents simultaneously appealed the Order to the Second Circuit and filed a motion in this Court for relief from judgment under Rule 60(b), F.R.Civ.P., asserting petitioners' failure to exhaust their remedies in State court. Although lacking jurisdiction, in the furtherance of judicial economy, this Court expressed its view that petitioners had exhausted their State remedies. That Order, dated March 28, 1979, also unpublished, follows as Appendix "B". Enforcement of the February 5, 1979 Order was stayed, however, pending appeal.

On appeal, the Second Circuit reversed, holding that petitioners had not exhausted their State remedies. Its precedent-setting opinion, Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979), is discussed extensively later in this Order.

Petitioners returned to the New York courts. Their motion to vacate their judgments of conviction was denied as procedurally barred by CPL § 440.10. The Appellate Division denied them leave to appeal, and they again presented their claim to this Court. Constrained by the Johnson v. Metz decision and the State court decision on its own procedural rules, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Klein v. Harris, 667 F.2d 274 (2d Cir.1981), this Court denied petitioners' second habeas petition, by unpublished Order dated June 25, 1982, which follows as Appendix "C".

Petitioners appealed again to the Second Circuit. In this interim, that court issued an en banc ruling on the standards for determining whether a claim asserted in a habeas petition has been exhausted in the State courts. Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir.1982). Rejecting the standard which had evolved from Johnson v. Metz, the court nonetheless distinguished and did not overrule that case. Less than two weeks later, however, the Second Circuit ordered that Johnson and Hall's petition "be remanded to the district court for further consideration in light of the intervening en banc opinion of this court in Daye." Johnson v. Scully, 82 Civ. 2226 (2d Cir., December 22, 1982).

Accordingly, this Court has again reviewed petitioners' original briefs to the Appellate Division. For the reasons that follow, this Court again holds that the claim of prejudicial judicial bias was fully exhausted in the State courts and is an appropriate ground for habeas relief. Finally, as discussed below, the Court has reviewed its February 5, 1979 Order granting the writ, and now reconfirms that decision.


At issue on this remand is whether petitioners' claim that they were deprived of their constitutional right to a fair trial by the prejudicial conduct of the trial judge was exhausted in the State courts. This issue was resolved against petitioners in Johnson v. Metz, a decision whose validity was questioned in Daye, 696 F.2d at 195, 197, and was undeniably thrown into doubt by the Second Circuit's decision to remand this petition.

Section 2254(b) of the federal habeas statute states in relevant part that habeas relief cannot be granted "unless it appears that the applicant has exhausted the remedies available in the courts of the State." Neither Johnson nor Hall specifically mentioned the due process clause in their State briefs. Analyzing the cases cited in those briefs, the Second Circuit concluded that petitioners were relying on State law and State court supervisory power for relief. 609 F.2d at 1054. The court held:

"The construction by this circuit of the meaning of the exhaustion doctrine leads us to conclude that the New York State courts have never been given an opportunity to consider whether the pervasive conduct of the trial judge in this case ... amounted to a violation of federal constitutional due process." Id. at 1055 (footnote omitted).

Cognizant of New York's strict post-conviction relief statute, CPL § 440.10, the court did add:

"It is difficult for this panel to believe ... that no post-conviction remedy whatever will be available by way of state collateral relief when a serious federal constitutional issue is involved.
"We have been cited to no case, nor have we found any, in which the intervention of a trial judge in the conduct of trial has been found so prejudicial as to amount to a violation of constitutional due process. Particularly because of the lack of authority, we think it appropriate that the state court should be allowed, in the first instance, to pass on the constitutional point fairly presented to it. We say this without attempting to suggest the result in this obviously serious case.
"We trust that upon a post-conviction hearing careful attention will be given to this record by the state courts in terms of the serious allegation of constitutional deprivation of the right to fair trial." Id. at 1056 (footnote omitted).

As previously noted, however, the New York courts did find petitioners to be procedurally barred from a collateral attack on their convictions. See Appendix C.

Concurring, Judge Newman clarified his view of petitioners' claim. Noting that they alleged more than mere excessive judicial intervention, he characterized their petition as asserting that "the nature of all of the trial judge's conduct — his questions, his comments to defense counsel, his comments to the defendants, and his comments to the jury — combined to deny petitioners the `fair trial in a fair tribunal' that is `a basic requirement of due process.'" 609 F.2d at 1057 (citation omitted). He added, "A claim of this nature is well within the mainstream of due process adjudication." Ibid.


William Daye, convicted of intentional murder, felony murder, and armed robbery in the Supreme Court, New York County, brought a habeas petition in federal court alleging that his sixth and fourteenth amendment rights to a fair and impartial trial had been violated by the conduct of the trial judge. Daye had not specifically cited the federal Constitution in his State briefs. The district judge held that Daye had nonetheless exhausted his State court remedies because the very nature of Daye's claim alerted the State courts to a constitutional question. Cf. Twitty v. Smith, 614 F.2d 325 (2d Cir.1979) (claimed lack of "effective assistance of counsel" impliedly raised sixth amendment issue). Reaching the fair trial issue, the judge dismissed Daye's petition as meritless. Daye, 663 F.2d 1155, 1156 (2d Cir.1981).

A divided Daye panel affirmed the dismissal but without prejudice to the merits. Writing for the court, Judge Newman stated the Second Circuit rule that "the exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts." Id. at 1155. Judge Newman traced this rule to the Johnson v. Metz decision:

"Just two years ago we applied this strict approach to exhaustion to a habeas corpus petition indistinguishable from Daye's. Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979). Like Daye, Johnson sought habeas corpus relief because of the excessive and prejudicial intervention of the state court trial judge, and, like Daye, his state court briefs, which made no express mention of the Sixth and Fourteenth Amendments, referred to the denial of a fair and impartial trial and characterized a fair trial as a fundamental element of the judicial process. Though the District Court in Johnson had concluded that the exhaustion requirement had been met and that the petitioner was entitled to relief on the merits, this Court reversed, ruling that Johnson had not presented a federal constitutional claim to the state courts. Even though Johnson's brief in the Appellate Division cited ten decisions of federal courts, his fair trial claim was deemed to be an appeal only to state law or to the supervisory power of the state appellate courts, and thus not the `same claim,' Picard v. Connor, 404 U.S. 270, 276 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), that he was presenting to the federal courts. Johnson v. Metz, supra, 609 F.2d at 1054." Id. at 1157.

Judge Newman continued by effectively criticizing the strict labeling requirement. First, he observed that renewed consideration of expressly labeled federal claims did not meet notable State court enthusiasm. He added:

"Nor is there much reason to believe that the articulation of facts (here, excessive and prejudicial court questioning)

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    • United States
    • Connecticut Supreme Court
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    ... ... Marzano, 149 F.2d 923, 926 (2d Cir.1945); see Johnson v. Scully, 563 F.Supp. 851, 859 (E.D.N.Y.1983). Judge Kaufman's statement in Nazzaro is also apposite here: "an appearance of impartiality and ... ...
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