Minor v. Harris

• Decision Date: 04 February 1983
• Docket Number: No. 81 Civ. 3919(ADS).,81 Civ. 3919(ADS).
• Citation: 556 F. Supp. 1371
• Parties: Allen MINOR, Petitioner, v. David HARRIS, as Superintendent, of Taconic Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

556 F. Supp. 1371

Allen MINOR, Petitioner, v. David HARRIS, as Superintendent, of Taconic Correctional Facility, Respondent.

No. 81 Civ. 3919(ADS).

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

February 4, 1983.

COPYRIGHT MATERIAL OMITTED

Susan C. Thon, William E. Hellerstein, The Legal Aid Society, New York City, for petitioner.

Robert Abrams, Atty. Gen., State of New York, New York City, for respondent; Paul Jawin, Deputy Asst. Atty. Gen., New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge:

Petitioner, who has served over five years of an indeterminate fifteen year prison sentence for robbery in the second degree, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 (1976). He was convicted on January 5, 1978, in New York Supreme Court, Queens County, of participating, with three other youths, in the robbery of Mr. Harry Landsberg on October 18, 1976. The thieves took Mr. Landsberg's wallet, containing ten dollars, but left him otherwise unharmed. Petitioner appealed his conviction to the Appellate Division of the Supreme Court, Second Department, arguing, inter alia, that the conduct of his trial judge, Justice Aaron F. Goldstein, throughout the trial and in instructing the jury, denied him his constitutional right to a fair trial. On February 11, 1980, the Appellate Division affirmed the conviction without opinion. People v. Minor, 74 A.D.2d 740, 424 N.Y.S.2d 806 (2d Dep't 1980). The New York Court of Appeals denied him leave to appeal on March 21, 1980.

Petitioner argues that "the entire trial was infected by Justice Goldstein's hostility toward petitioner, his counsel, and the defense case." Pl.Mem. at 12. As he did in appealing within the state system, petitioner divides his claims into two groups: Justice Goldstein's interventions during the evidentiary phase of the trial, and his allegedly prejudicial and unconstitutional jury instructions.¹ Petitioner has "exhausted the remedies available in the courts of the State," 28 U.S.C. § 2254(b) (1976), with respect to his claims; he has fairly presented to an appropriate state court the same factual complaints urged here, including in his state court briefs reference to the specific parts of the federal constitution on which he relies — the right to a fair trial and the right to confront witnesses; and he has appealed on those grounds to the highest state court. Klein v. Harris, 667 F.2d 274, 282 (2d Cir.1981). Petitioner is not entitled to relief, however, because procedural defaults preclude review of some of his claims, and because in any event he has failed to establish a basis for issuing the writ.

I.

Respondent contends that petitioner has forfeited many of his claims — all of his objections to the court's charge and some of his objections to events that occurred earlier in the trial — by failing to object to them during the trial. In New York, as in many jurisdictions, failure to object timely at trial to perceived errors in trial procedure ordinarily precludes appellate review of those alleged errors. N.Y. Crim.Proc.Law § 470.05(2) (McKinney's 1971); see People v. Thomas, 50 N.Y.2d 467, 471, 407 N.E.2d 430, 432, 429 N.Y.S.2d 584, 586 (1982). Principles of comity mandate that federal courts respect state rules that require contemporaneous objections to preserve claims of error. See Wainwright v. Sykes, 433 U.S. 72, 88-91, 97 S.Ct. 2497, 2507-2508, 53 L.Ed.2d 594 (1977). Therefore, where the state appellate courts have declined to review the merits of a claim of error because of a procedural default, a federal court reviewing a § 2254 habeas petition must do the same unless the petitioner can show "cause" for the default and "actual prejudice" resulting from the error. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506.

The fact that a default occurred in state court, however, does not necessarily establish that the state courts relied on the default in rejecting a claim. If the state courts choose to reach the merits, despite the availability of a procedural ground for denying a claim, the federal courts must likewise disregard the default and reach the merits. There is "no warrant ... for guarding state procedural rules more vigilantly than the State itself does." Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981); see County Court v. Allen, 442 U.S. 140, 147-54, 99 S.Ct. 2213, 2219-23, 60 L.Ed.2d 777 (1979).

These principles failed until recently to provide sufficient guidance for cases in which a default clearly occurred but the state appellate court denied relief without indicating whether it was ruling on the merits or on the default. In this case, as in many others, both the Appellate Division's affirmance and the Court of Appeal's denial of leave to appeal were without opinion. See, e.g., Washington v. Harris, supra, 650 F.2d at 451; Taylor v. Harris, 640 F.2d 1 (2d Cir.), cert. denied, 452 U.S. 942, 101 S.Ct. 3089, 69 L.Ed.2d 958 (1981); Wright v. Bombard, 638 F.2d 457 (2d Cir.1980), cert. denied, 450 U.S. 935, 101 S.Ct. 1400, 61 L.Ed.2d 370 (1981); Alburquerque v. Bara, 628 F.2d 767 (2d Cir.1980); Callahan v. LeFevre, 605 F.2d 70, 73 n. 6 (2d Cir.1979). In Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982), the Second Circuit, noting considerable confusion in interpretating state court silence in federal habeas cases, resolved to "state the law on the issue, as we understand it, as it has developed in this circuit." Id. at 54. Martinez established that a District Court must base its interpretation of silence by the Appellate Division on whether the state raised the procedural default on appeal; when the prosecutor has argued only the merits of a claim, an affirmance without opinion will be deemed to have reached the merits; and when the prosecutor relied on the default, even if argued in the alternative, relying also on the merits, an affirmance without opinion must be presumed to be based on the procedural ground. An affirmance under the latter circumstances creates an adequate and independent state ground that precludes federal review absent a showing of cause and actual prejudice. Id.; see Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum.L.Rev. 1050, 1082-88 (1978).

The Court relied on practical considerations to support its ruling. It recognized that the State cannot easily predict when the Appellate Division will invoke its discretionary interest-of-justice jurisdiction and therefore sought not to place the state at risk when it argues the merits as well as a procedural default by a restrictive interpretation of appellate court silence. It reasoned:

Arguing in the alternative is a well-accepted practice .... It therefore makes no sense for us to hold that when a state prosecutor acts as a prudent advocate, he waives any of the alternative grounds that he asserts. Furthermore, we do not believe that the Appellate Division's silence evinces an intent to overlook the procedural error. The interest-of-justice jurisdiction under § 470.15 is not invoked routinely. See, e.g., People v. Robinson, 36 N.Y.2d 224, 228-29, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1975). Therefore, we feel justified in assuming that the Appellate Division does not exercise its discretion under the section and decide a case solely on the merits of a claim, unless it says so.

675 F.2d at 54 (footnote omitted).

The assumption required by Martinez marks a necessary refinement in this Circuit's rules governing procedural default. Although the Court stated that it was merely clarifying the law, prior cases articulated less manageable rules of construction. In Klein v. Harris, 667 F.2d 274 (2d Cir.1981), the Court held that, before a federal court denies habeas review under Wainwright v. Sykes, it must appear "that the state court actually relied upon a procedural default ...." Id. at 285 (emphasis in original). It counselled that a District Court, in deciding whether the state court actually relied on a procedural bar, proceed "on a case-by-case basis, upon a consideration of all the relevant indicia." Id. at 285. In other cases the Court also seemed to look to more varied factors and make ad hoc decisions in interpreting state court silence.²See, e.g., Washington v. Harris, 650 F.2d 447, 451-52 (2d Cir.1981); Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir.1981); Callahan v. LeFevre, 605 F.2d 70, 73-74 (2d Cir.1979). Moreover, while Martinez shifted from these ad hoc evaluations in an opinion that still spoke in terms of "shoulds" and "presumptions", arguably leaving some room for variance from its rule, see, e.g., 675 F.2d at 54 n. 6, subsequent Second Circuit opinions leave no doubt as to the appropriateness of its single factor approach. "Under Martinez v. Harris," the Second Circuit recently stated, "a state appellate court's silence after the state has argued in the alternative requires a federal habeas corpus court to conclude that the petitioner's claim was rejected by the state appellate court on state law grounds." Johnson v. Harris, 682 F.2d 49, 51 (2d Cir.1982) (emphasis added); see also Gulliver v. Dalsheim, 687 F.2d 655, 659 (2d Cir.1982).

Petitioner has therefore waived those constitutional claims that he failed to raise at trial and that the state contested on procedural grounds on appeal. In particular, petitioner failed to challenge at trial, constitutionally or otherwise, the jury charges delivered by Justice Goldstein. Habeas review of these charges is therefore precluded, although several of petitioner's claims seem meritorious, given the Appellate Division's reversals of many other convictions before Justice Goldstein involving similar charges. See, e.g., People v. Branch, 83 A.D.2d 855, 441 N.Y.S.2d 737 (2d Cir.1981) (defendant deprived of fair trial by charge that among other things the "question of punishment rests on the shoulders of this Judge. And you can be sure that my shoulders are big enough and broad enough to carry that...