Linares v. Senkowski

• Citation: 964 F.2d 1295
• Decision Date: 26 May 1992
• Docket Number: 1321,Nos. 1320,D,s. 1320
• Parties: Zoilo LINARES and David Munoz, Petitioners-Appellants, v. Daniel SENKOWSKI, Superintendent of the Clinton Correctional Facility, and John P. Keane, Superintendent of the Sing Sing Correctional Facility, Respondents-Appellees. ocket 91-2605, 92-2001.
• Court: U.S. Court of Appeals — Second Circuit

Page 1295

964 F.2d 1295

Zoilo LINARES and David Munoz, Petitioners-Appellants, v. Daniel SENKOWSKI, Superintendent of the Clinton Correctional Facility, and John P. Keane, Superintendent of the Sing Sing Correctional Facility Respondents-Appellees.

Nos. 1320, 1321, Docket 91-2605, 92-2001.

United States Court of Appeals Second Circuit.

Argued April 8, 1992.

Decided May 26, 1992.

John J. Kenney, New York City (Simpson Thacher & Bartlett, Andrew S. Amer, Steven R. Chabinsky, of counsel), for petitioners-appellants.

Paul Shechtman, New York City, Asst. Dist. Atty., (Robert M. Morgenthau, Dist. Atty., Mark Dwyer, Asst. Dist. Atty., of counsel), for respondents-appellees.

Before: FEINBERG, WINTER and ALTIMARI, Circuit Judges.

FEINBERG, Circuit Judge:

Appellants, two of six individuals charged in connection with the criminal sale and possession of a controlled substance, appeal from orders of the United States District Court for the Southern District of New York, Louis J. Freeh, J., dated November 4, 1991, denying their petitions for writs of habeas corpus. Appellants claim that their convictions violated the Due Process Clause of the Fourteenth Amendment because the prosecutor fraudulently represented himself as an admitted attorney when he was in fact never admitted to the bar. For the reasons given below, we affirm.

Background

This appeal arises from the November 1985 indictment of appellants Zoilo Linares and David Munoz and their co-defendants, Elmer Sanchez-Medina, Edimer Rosero, Livia Del-Rosario and Irma Posada, for the criminal sale and possession of cocaine. Munoz v. Keane, 777 F.Supp. 282, 283 (S.D.N.Y.1991). Two of the original defendants pled guilty, and the remaining four, including appellants, were tried in May 1986. Id. at 283. At trial, the evidence that Linares and Munoz sold and possessed 3.6 pounds of cocaine was overwhelming, and they were convicted in June 1986. Linares was sentenced to concurrent prison terms of 17 years to life, and Munoz was sentenced to concurrent prison terms of 20 years to life. Id.

Daniel J. Penofsky, a former assistant district attorney in the Special Narcotics Prosecutor's Office, had presented the case against appellants to the grand jury, handled pre-trial discovery and tried the case. In March 1989, an investigation conducted by the District Attorney's office revealed that Penofsky was not admitted to practice law in New York, that he had either never sat for or never passed the New York State bar examination, and that he had never submitted documentation to the Character Committee of any New York Judicial Department in an effort to be admitted upon waiver of the bar examination due to reciprocity with another state. See People v. Munoz, 153 A.D.2d 281, 550 N.Y.S.2d 691, 692 (1st Dep't 1990), appeal denied, 75 N.Y.2d 922, 555 N.Y.S.2d 41, 554 N.E.2d 78 (1990). After Penofsky's fraud came to light, he was dismissed as an assistant district attorney, People v. Munoz, 550 N.Y.S.2d at 692, and in January 1991, following a plea of guilty, he was convicted of one count of defrauding the government and of one count of practicing law without a license.

Upon learning of Penofsky's fraud, appellants sought to have their convictions reversed. While appellants' case was pending in the state courts, the New York Court of Appeals had occasion to consider the same issue as that raised by appellants, see People v. Carter, 77 N.Y.2d 95, 564 N.Y.S.2d 992 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991), and appellants were given the opportunity to renew their applications for leave to appeal their convictions pending the outcome of that case. Munoz v. Keane, 777 F.Supp. at 284 n. 5. The New York Court of Appeals rejected the defendants' claim in Carter that their prosecution by an unlicensed attorney (also Penofsky) denied them Due Process under the Federal and State Constitutions.

After exhausting their state-court remedies, appellants petitioned the district court for writs of habeas corpus. Their petitions were denied on the merits, Munoz v. Keane, 777 F.Supp. at 289, and this appeal followed.

Discussion

Appellants argue that criminal defendants have a constitutional right to be prosecuted by attorneys who do not falsely hold themselves out to be admitted attorneys. Appellants contend that trials in which prosecutors pretend to be what they are not violate the Due Process Clause by denying defendants "[a] fair trial in a fair tribunal." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Although appellants cannot point to any particular act of the prosecutor during the proceedings that prejudiced them, they assert that where a prosecutor, a "quasi-judicial officer," has falsely represented that he is an attorney, as Penofsky has, the defendants need not demonstrate prejudice to have their convictions vacated. ¹

Because this case does not come to us on direct appeal from a federal conviction but on an appeal from the denial of habeas corpus to state prisoners, we are required to consider whether the argument pressed by appellants, if accepted, would establish a new constitutional rule of criminal procedure. Teague v. Lane, 489 U.S. 288, 299, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989). If such a holding would create a new rule, then we may not reach the merits of appellants' argument because new rules may not be applied or announced in a habeas corpus proceeding. ² Id. at 310, 109 S.Ct. at 1075; Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990).

New Rules

The standard for determining whether the right asserted by appellants is a "new rule" under Teague involves an assessment of whether or not the rule is "dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. at 1070. In examining the precedents, we have reviewed a rule related to that proposed by appellants. The rule holds that a prosecutor who knowingly allows a government witness to commit perjury deprives the defendant of Due Process. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). We have concluded, however, that a reasonable interpretation of this rule might limit it to situations in which a prosecutor has allowed perjury to be presented to the trier of fact determining the guilt or innocence of the defendant. Where, as in our case, the only perjury committed was the prosecutor's signing of documents as an admitted attorney, documents that the trier of fact--the jury--did not see, a state court could reasonably distinguish Giglio and Napue and find no rule requiring reversal of appellants' convictions.

We simply cannot find that the federal constitutional right asserted is dictated by precedent. Indeed, appellants do not cite even one federal case that closely resembles ours. ³ Of course, as appellants correctly point out, every defendant has the right to a fair trial. Obviously, this right does not constitute a new rule. But, if a habeas corpus petitioner can describe the right sought at so high a level of generality, it is difficult to see how anything could be termed a new rule. This result is clearly inconsistent with Teague and its progeny. If we instead, and more reasonably, describe what appellants seek as a rule holding unconstitutional those proceedings in which a prosecutor fraudulently represents that he or she is licensed to practice law, such a rule is not required by any prior decision. We conclude therefore that the rule appellants ask us to announce would constitute a "new rule" under Teague.

New Rules That Apply On Habeas Corpus

That appellants ask this court to announce a new rule in a habeas corpus proceeding does not itself resolve our inquiry. The Supreme Court has articulated two "narrow exceptions" to Teague, Saffle v. Parks, 494 U.S. 484, 486, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), describing circumstances under which a new rule may be applied on collateral review: "The first of these applies to new rules that place an entire category of primary conduct beyond the reach of the criminal law..., or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense.... The second ... applies to new 'watershed rules of criminal procedure' that are necessary to the fundamental fairness of the criminal proceeding." Sawyer v. Smith, 110 S.Ct. at 2831 (citations omitted). Because the first exception has no application here, we turn to appellants' argument that the rule they advocate in this case is a "watershed" rule of criminal procedure.

In considering this issue, it should first be noted that...