Pinkney v. Keane

• Decision Date: 07 December 1990
• Docket Number: D,No. 361,361
• Citation: 920 F.2d 1090
• Parties: Marvin PINKNEY, Petitioner-Appellant, v. John KEANE, Superintendent, Sing Sing Correctional Facility, Ossining, New York, Respondent-Appellee. ocket 90-2250.
• Court: U.S. Court of Appeals — Second Circuit

Page 1090

920 F.2d 1090

Marvin PINKNEY, Petitioner-Appellant, v. John KEANE, Superintendent, Sing Sing Correctional Facility Ossining, New York, Respondent-Appellee.

No. 361, Docket 90-2250.

United States Court of Appeals Second Circuit.

Argued Oct. 18, 1990.

Decided Dec. 7, 1990.

Diarmuid White, New York City (Herald Price Fahringer, Lipsitz, Green, Fahringer, Roll, Schuller & James, of counsel), for petitioner-appellant.

Michael O'Brien, Asst. Dist. Atty., Kew Gardens, N.Y. (John J. Santucci, Dist. Attorney, Queens County, of counsel), for respondent-appellee.

Before OAKES, Chief Judge, PIERCE and WINTER, Circuit Judges.

OAKES, Chief Judge.

This case presents the unique situation of a federal court denying a habeas petition on the basis of evidence that the state appellate court had ordered suppressed, the federal court having found that the suppression order was erroneous.

Following a jury trial in the Supreme Court of the State of New York in 1982, Marvin A. Pinkney was convicted of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. He was sentenced to concurrent terms of 25 years to life on Count One, 7 1/2 to 15 years on Count Two, and 3 1/2 to 7 years on Count Three. On direct appeal, the Appellate Division reversed the trial court's denial of a motion to suppress two handguns seized from Pinkney's car, and modified the judgment by reversing the two convictions for weapons possession and dismissing those counts of the indictment. See People v. Pinkney, 135 A.D.2d 748, 749, 522 N.Y.S.2d 653, 654 (2d Dept.1987). The Appellate Division affirmed the conviction for murder, however, finding that the erroneous admission of the handguns was harmless with respect to that conviction in light of other compelling evidence of Pinkney's guilt. See id. The Court of Appeals denied Pinkney's application for leave to appeal the affirmance of the murder conviction. See People v. Pinkney, 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59 (1988). The People did not seek leave to appeal the reversal of the weapons possession convictions.

On March 3, 1989, Pinkney filed a petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, claiming that he was denied his federal constitutional rights on various grounds, including that

the identification testimony at trial was the product of impermissibly suggestive procedures, that his attorney was improperly barred from attacking the reliability of the identification testimony, and that his post-arrest silence was wrongly used against him. After all papers were filed, the district court advised the parties that, while the claims raised by petitioner appeared to have merit, the Appellate Division's decision that the two seized handguns should have been suppressed was unpersuasive. The court therefore requested briefing on the lawfulness of the search of petitioner's car and seizure of the weapons, over petitioner's objection that the issue could not be relitigated. The court also held a brief evidentiary hearing on the issue. By memorandum and order dated May 10, 1990, the district court denied Pinkney's petition, concluding that there was no need to resolve the claims presented because the Appellate Division had erred in holding that the search of Pinkney's car and the seizure of the handguns was unlawful, and admission of the handguns rendered harmless the errors alleged in the petition. See Pinkney v. Keane, 737 F.Supp. 187 (E.D.N.Y.1990). The district court issued a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253, and Pinkney appealed. Because we agree with the district court that appellant's conviction was not constitutionally deficient, we affirm.

BACKGROUND

The pertinent facts regarding the search of appellant's car, which are set out in the trial judge's Memorandum and Order Denying Defendant's Motion to Suppress Evidence, People v. Pinkney, No. 2614/81 (N.Y.Sup.Ct. Oct. 25, 1982), and which were adopted by the district court, see 737 F.Supp. at 190-91, ¹ can be briefly summarized.

On October 1, 1981, at approximately 4:45 p.m., Andrew Kalina was shot to death inside his liquor store at 44-24 College Point Boulevard in Queens, New York. Four persons witnessed a man running out of the store shortly after the shooting. When the first set of police officers arrived at the scene, they found the front door of the store open and its glass shattered. A trial of blood led from the shattered glass to the street outside. The police notified all hospitals in the area to look out for possible suspects seeking treatment for injuries.

Shortly before 5:00 p.m. on the day of the murder, a motorist, Stanley Zadwydos, was involved in an accident with a foreign car on the Interboro Parkway near Queens Boulevard. The foreign car drove off without stopping, but Zadwydos pursued and caught it. He then confronted its driver, who said that he was bleeding and that he was heading for a hospital. The foreign car then sped off again, and Zadwydos eventually lost sight of it. He then notified the police about the accident and gave them the foreign car's license plate number. The police ran a check on the number and learned that the car was registered to Marvin Pinkney.

At approximately 5:15 p.m., Officers William Fitzpatrick and Thomas McGovern received radio instructions to go to the Jamaica Hospital emergency room. They were given a description of the perpetrator of a robbery, and told that he might be injured. ²

As the officers approached the hospital, they noticed footprints of blood, which led them to the emergency room, where a man was being treated for a leg injury. In response to a question by McGovern, the man stated that he had been mugged by two white men, and had walked to the hospital.

Officer Fitzpatrick left his partner with the suspect and began tracing back the trail of blood. It led him directly to a yellow Toyota parked on a public street about 1 1/2 blocks from the hospital. The keys were lying on the hood of the car, and the doors were unlocked. Fitzpatrick entered the car and saw a pool of blood inside on the driver's side. He then got out of the car, went around to the passenger side, and looked through the side window. He now noticed an open bag from which the handle of a gun protruded. The officer reentered the car and seized the bag, which contained two handguns.

At trial, four eyewitnesses identified Pinkney as the man who had run out of Kalina's liquor store after the shooting and driven away. Stanley Zadwydos testified regarding his hit-and-run accident with the defendant. The People introduced into evidence the two weapons seized from Pinkney's car, one of which, a .22 caliber pistol, contained four spent shells and had been fired shortly before it was seized. A police department ballistics expert testified that the bullet recovered from the body of the deceased had been fired from that .22 caliber pistol. Other expert testimony established that blood samples found on the shattered glass from the liquor store door and on Pinkney's clothes and car were genetically consistent with each other, and that the genetic factors found in this blood occur in only six percent of the population.

DISCUSSION

A. The District Court's Review of the Appellate Division's Suppression Order.

The principal question raised on this appeal is whether a federal court in a habeas corpus proceeding is necessarily bound by a state appellate court's ruling in petitioner's favor on a matter of federal constitutional law, where that ruling itself reversed a ruling by the state trial court that was adverse to the petitioner. Appellant claims that the answer is yes, and invokes principles of federalism, comity, waiver, and collateral estoppel, among other things, in support of his position. For the reasons set forth below, we disagree with the appellant, and hold that, under the circumstances of this case, the district court did not err in reviving the state trial court's denial of suppression.

The power of the federal courts to grant writs of habeas corpus is derived from 28 U.S.C. Sec. 2241, which provides that any federal court may grant the writ to any person restrained within its jurisdiction or, where the application is made by a state prisoner, convicted and sentenced within its jurisdiction. See 28 U.S.C. Sec. 2241(a), (d) (1988). Appellant's first claim is that section 2241 does not provide a jurisdictional basis for collateral review of a state court ruling adverse to the prosecution. However, the fact that state prosecutors cannot themselves initiate collateral review proceedings in federal court does not mean that federal courts lack power to consider arguments by the State that bear on whether a prisoner is in fact "in custody in violation of the Constitution or laws ... of the United States." 28 U.S.C. Sec. 2241(c)(3) (1988). Moreover, appellant's narrow reading of section 2241 ignores the equitable principles governing the Great Writ, reflected in the plenary discretion vested in habeas courts to "hear and determine the facts, and dispose of the matter as law and justice require." 28 U.S.C. Sec. 2243 (1988) (emphasis added); see also Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 2623, 91 L.Ed.2d 364 (1986) (reaffirming equitable nature of habeas writ); Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963) (same).

Even if the district court had authority to reopen the issue of the legality of the search of appellant's car, appellant argues, the District Attorney waived the right to relitigate that issue by failing to seek review of the Appellate Division's suppression order in the Court of Appeals. In other words, appellant would have us impose the exhaustion of remedies requirement, 28 U.S.C. Sec. 2254(b) (1988), on the prosecution. ³ A...