Losinno v. Henderson

• Citation: 420 F. Supp. 380
• Decision Date: 27 September 1976
• Docket Number: 76 Civ. 3063.
• Parties: John LOSINNO, Petitioner, v. Robert HENDERSON, Superintendent, Auburn Correctional Facility, Auburn, New York, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

420 F. Supp. 380

John LOSINNO, Petitioner, v. Robert HENDERSON, Superintendent, Auburn Correctional Facility, Auburn, New York, Respondent.

76 Civ. 3063.

United States District Court, S. D. New York.

September 27, 1976.

Finkelstein, Mauriello, Kaplan & Levine, P. C., Newburgh, N. Y., for petitioner; Howard Karger, Newburgh, N. Y., of counsel.

Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, for respondent; Joseph W. Henneberry, Asst. Atty. Gen., New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Petitioner, now serving an indeterminate sentence not to exceed four years at Auburn Correctional Facility, New York, seeks his release upon a federal writ of habeas corpus. His sentence was imposed pursuant to a judgment of conviction entered in the County Court of Orange, State of New York, upon his plea of guilty to promoting gambling in the first degree. He seeks to void the judgment of conviction on the grounds that it was obtained in violation of his rights under the Fourth and Fourteenth Amendments of the Federal Constitution and under the Omnibus Crime Control and Safe Streets Act of 1968.¹

The petitioner's plea of guilty was entered after his motion for an order of suppression of evidence obtained under an allegedly invalid eavesdropping warrant was denied. Upon direct appeal from the judgment of conviction,² the Appellate Division held the warrant to be illegal, reversed the judgment of conviction and dismissed the indictment.³ Upon appeal by the State, the Court of Appeals reversed the dismissal of the indictment and remitted the case to the Appellate Division,⁴ which then affirmed the conviction. The claims here presented were also urged upon the state courts, and petitioner has exhausted available state remedies.

The petitioner charges three violations of his constitutional or statutory rights: First, that the eavesdropping warrant through which evidence was obtained against him was issued without probable cause in violation of his rights under the Fourth Amendment; second, that the eavesdropping warrant was void on its face because it authorized the District Attorney of Orange County to designate the person or persons to conduct the eavesdropping surveillance; and third, that the warrant was invalid on its face because it authorized the overhearing and interception of "all conversations" on the target telephone.

As to petitioner's claim of the use of evidence in violation of the Fourth Amendment, the recently decided case of Stone v. Powell⁵ forecloses federal habeas corpus relief if "an opportunity for full and fair litigation" of such claim was afforded petitioner in the state courts. Upon each appellate review in the state courts, petitioner made the same contention of violation of Fourth Amendment rights that he here advances. Notwithstanding this, he argues that Stone is no bar to federal habeas corpus relief because the state appellate courts "remained silent" with respect to his Fourth Amendment claims, and because "there is really no sound way of knowing the basis upon which they rendered their opinions." The appellate records make it clear that the constitutional claim was briefed and presented for review. There is, of course, no requirement that a court write an opinion touching upon every contention raised by an appellant. That the appellate courts rejected petitioner's constitutional claims without specifically addressing each one does not indicate that he was denied a full and fair opportunity to litigate them or that they were not fully considered. Indeed, when the Appellate Division affirmed the judgment of conviction on remittitur, it stated that it had "considered the points raised by counsel and found them without merit." As the Supreme Court recently remarked in Stone:

"We are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law."⁶

Losinno's further argument that he was deprived of a full and fair opportunity to litigate the constitutional claims presented here because he was not afforded an evidentiary hearing is without substance. These claims were based only on the warrant and the affidavit upon which it was issued, and consequently no hearing was required.

Petitioner contends that even if his constitutional claim is foreclosed under Stone v. Powell, he is nonetheless entitled to federal habeas corpus relief and the vacatur of the judgment of conviction because the State violated the Omnibus Crime Control and Safe Streets Act of 1968—in short, that while his federal constitutional claim fails, the same facts establish a violation of the federal statute which voids the judgment of conviction.

A threshold question that the parties have not addressed is whether this Court has habeas corpus jurisdiction under 28 U.S.C., section 2254, to consider petitioner's federal statutory claim following its rejection by the state courts. The jurisdiction of federal district courts to issue writs of habeas corpus, originally limited to prisoners held in custody by the United States,⁷ was extended in 1867 to state prisoners.⁸ Under the 1867 Act federal district courts were authorized to give relief in "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Essentially, the Act's purpose was to provide a federal forum for vindication of constitutional guarantees of which a state prisoner had been deprived.⁹ The jurisdictional provisions of the 1867 Act have continued virtually unchanged to the present day and are now contained in 28 U.S.C., sections 2241(c)(3) and 2254(a).¹⁰

Whether the federal courts have habeas corpus jurisdiction where a state prisoner grounds his claim for release on an alleged violation of the laws of the United States and he does not claim a constitutional violation has rarely arisen under section 2254 petitions for relief.¹¹ The paucity of decisions on this issue reflects the fact that in most instances the claims under section 2254 charged a defect in the state proceedings that impinged upon a federally protected constitutional right. This probably explains why so many cases categorically state that "review of state criminal proceedings under section 2254 is limited to errors of constitutional magnitude."¹²

Unambiguous as they may be, these statements cannot be taken to preclude consideration of nonconstitutional claims, because they were not made in response to an assertion of nonconstitutional federal rights. Nevertheless, the question of jurisdiction appears to be close, for there are serious objections to allowing habeas corpus proceedings to serve as yet another review by federal district courts of nonconstitutional claims already fully determined by state courts, which, like federal courts, are obligated to enforce the "laws . . . of the United States."¹³ However, the recent opinion of the Supreme Court in Davis v. United States¹⁴ gives direction on this jurisdictional issue. In Davis the Court held that errors of federal law "lacking a constitutional dimension" are cognizable on collateral attack under the "laws of the United States" provision of 28 U.S.C., section 2255, which makes available to federal prisoners a remedy on collateral attack essentially identical to habeas corpus relief. Although Davis dealt with section 2255, the Court made it quite clear that its holding applied to section 2254 as well—in fact, the Court held as it did because:

"There can be no doubt that the grounds for relief under § 2255 are equivalent to those encompassed by § 2254 . . . under which relief is available on the ground that `a person is in custody in violation of the Constitution or laws or treaties of the United States.'"¹⁵ (Emphasis in original.)

The Court carefully noted, however, that not every violation of federal law is cognizable under section 2255. On the contrary, a claimed error can only be asserted if it is "a fundamental defect which inherently results in a miscarriage of justice" and if it presents "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent."¹⁶ The clear implication of Davis is that this standard is to be applied to section 2254 petitions as well as to motions under section 2255.¹⁷

We thus turn to consideration of petitioner's alleged federal statutory violations to determine whether they constitute a "fundamental defect" of such "exceptional circumstances" that habeas corpus relief is warranted. First, he argues that the wiretap warrant was invalid on its face under 18 U.S.C., section 2518(4), which requires that "each order authorizing or approving the interception of any wire . . . communication shall specify . . . (d) the identity of the agency authorized to intercept the communications." The order at issue authorized the District Attorney or Orange County or "any other person or persons designated" by him to conduct the surveillance, and the application for the warrant expressly requested that the order authorize two named New York State police officers and "other members of the New York State Police expressly designated" by the District Attorney to conduct the wiretap. No colorable claim has been made in this proceeding or in the state courts that anyone other than New York state police officers actually executed the warrant. Petitioner rather advances the argument that designation of the District Attorney and his appointees as those authorized to conduct the surveillance is not equivalent to specification of the "agency authorized to intercept communications." This claim rests on a technical application of the statutory language and is plainly not of constitutional magnitude. The alleged error does not constitute a fundamental...