Sabino v. LeFevre, 78 Civ. 1775 (ADS).

• Decision Date: 30 April 1980
• Docket Number: No. 78 Civ. 1775 (ADS).,78 Civ. 1775 (ADS).
• Citation: 490 F. Supp. 183
• Parties: Eddie SABINO, Plaintiff, v. Eugene LeFEVRE, Superintendent, Clinton Correctional Facility, and the Attorney General of the State of New York, Louis Lefkowitz, Defendants.
• Court: U.S. District Court — Southern District of New York

490 F. Supp. 183

Eddie SABINO, Plaintiff, v. Eugene LeFEVRE, Superintendent, Clinton Correctional Facility, and the Attorney General of the State of New York, Louis Lefkowitz, Defendants.

No. 78 Civ. 1775 (ADS).

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

April 30, 1980.

Frederick H. Block, New York City, for plaintiff.

Robert Abrams, Atty. Gen., State of New York, New York City, by Stephen M. Jacoby, Asst. Atty. Gen., New York City, for defendants.

OPINION

SOFAER, District Judge:

Petitioner was convicted of criminal sale of controlled substances in the second degree on June 11, 1975, following a jury trial in the Supreme Court of New York, Bronx County. The Appellate Division of the First Judicial Department unanimously affirmed the conviction by order dated June 15, 1976, and leave to appeal to the New York Court of Appeals was denied on July 23, 1976. Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The petition, filed pro se, challenges the conviction on three grounds. Petitioner claims, first, that he was denied effective assistance of counsel at trial. Second, petitioner contends that he was denied due process by the trial court's refusal to permit disclosure of the identity of a confidential informant. Finally, petitioner argues that the trial judge's admonishment concerning petitioner's rights on cross-examination violated due process.

Following the submission of respondent's papers in opposition to the petition, Judge Pierce, to whom this case was originally assigned, appointed counsel to represent petitioner pursuant to 18 U.S.C. § 3006A(g). Assigned counsel, after reviewing the petition, transcript and papers in this case, and after consulting with petitioner, conceded in his affidavit in support of the petition that the first two claims lacked merit, and elected not to pursue them further. At oral argument and in his supplemental memorandum, counsel again stated that the claims were meritless and that he would not press them in this proceeding. From his affidavit and from his oral representations, it is clear that counsel's decision to drop the first two claims was based on careful review and thorough consideration. Moreover, petitioner, though aware of the decision, has apparently acquiesced in counsel's judgment. Counsel's decision not to pursue these claims appears justified. See, e. g., United States v. Roberts, 401 F.2d 538, 539 (2d Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968) (absent defense demand government is under no obligation to volunteer information concerning informant); United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950) (allegations of incompetence of counsel are insufficient unless counsel's representation made trial a farce and a mockery of justice). In any event, under these circumstances, petitioner is bound by counsel's waiver of the claims. As the Second Circuit has stated: "A defendant who elects to be represented by counsel surrenders the right to make the ultimate decision on a wide variety of matters. . . . The courts have increasingly come to recognize that a lawyer's decisions, at least on those subjects for which he bears ultimate responsibility, will ordinarily be binding, even though important constitutional rights may be lost. . . ." Ennis v. LeFevre, 560 F.2d 1072, 1075 (2d Cir. 1977), cert. denied, 435 U.S. 976, 98 S.Ct. 1625, 56 L.Ed.2d 70 (1978) (citations omitted).

That brings us to the third claim. At the trial, the prosecution called three policemen and a chemist. Police Officer Santiago testified that on December 11, 1973 at about 3:15 P.M., while acting in an undercover capacity, he was introduced to petitioner in a car owned by an informant. (Tr. 16-17) The two other police witnesses observed the meeting. (Tr. 71-72; 97-100) All three officers identified petitioner in court. Santiago testified that following the introduction he, the petitioner, the informant and two others took a ride in the informant's car, during which narcotics were discussed. (Tr. 17) The following evening, at about 11:15 P.M., Santiago and the informant went to petitioner's apartment where Santiago purchased high quality cocaine from petitioner and a "John Doe" for $800. (Tr. 20-26) Santiago met with petitioner in the apartment again on February 27, 1974 and they spoke by phone the following day. (Tr. 27)

Petitioner's wife was the only defense witness. She testified that, on the evening of December 11, 1973, she and her husband celebrated their son's birthday until 12:30 A.M. and retired for the night at 2:00 A.M. (Tr. 158-59; 168-69) She stated that on the evening of December 12, 1973, petitioner went to bed at 8:30 P.M. and that no one came to the apartment that evening. (Tr. 170-72).

Following the testimony of petitioner's wife, the court asked defense counsel in the jury's presence if he had any more witnesses. Defense counsel replied (Tr. 194):

It is getting close to lunch and I would like to call the defendant, Mr. Sabino. I ask the Court to give me an opportunity to review.

After a recess, and in the absence of the jury, the following occurred (Tr. 195-98):

THE COURT: I want to be aware of the fact that prior to the beginning of trial there was sic no motions or hearing held with respect to any Sanderval sic Hearing, or a hearing of a like kind. But, it is now too late. There have been no papers filed. There have sic been no affidavit filed. There's been no motion to preclude. Under the circumstances, I feel it incumbent to let the record show that if your man is called to the stand to testify, he's going to subject himself to the cross-examination and that, in the course of that cross-examination, he will be examined with respect to any or all of the acts in his life which are a matter of public record which indicate a criminal disposition, that including among these acts, are matters which are presently pending in the Court and I will advise him at the appropriate time, before the Jury of the fifth amendment rights that I am now asserting to him that he will have the right and the opportunity to take those fifth amendment rights in the presence of the jury. I say all of these things to you for the benefit of the record and for your consideration yourself and your client before the actual taking of testimony.

MR. KILEY: May I respectfully ask the Court to note that I take an exception to your rulings, sir.

THE COURT: Mr. Kiley, if you want to except to my ruling, you will do so as we go along. I'm merely telling you what it is that your client is faced with and I just want you to be fully apprised of it and be aware of it and I want your client to be aware of it. All right. We'll bring down the jury.

MR. KILEY: If your Honor please, may I have a few moments to go over these alleged charges with my client?

THE COURT: Yes, certainly, I'll give you another five minutes.

(Whereupon, there was a discussion, at the table, off the record, between the defendant and the counsel.)

MR. KILEY: Your Honor, after conferences with the defendant and the family, they have decided that he will not take the stand in his own defense.

Based on this colloquy, petitioner in his pro se habeas corpus application set forth a vague due process claim, copied in part from the heading of Point IV of his brief to the Appellate Division.¹ In his papers and at oral argument, assigned counsel interpreted this claim as one grounded in a constitutional right to testify. He argues that the trial judge erred in suggesting that the prosecutor could prove defendant's criminal disposition, thereby unconstitutionally deterring the defendant from taking the stand, in violation of due process.

The initial inquiry with respect to this claim is whether petitioner has exhausted his available state remedies. 28 U.S.C. § 2254(b) and (c). The exhaustion doctrine, grounded in notions of federal-state comity, requires that a state prisoner's constitutional claim be "fairly presented" to the state courts before a federal habeas petition is filed. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). A claim has been "fairly presented" if "the facts on which the defendant relies have been called to the attention of the state court," and if the state court has been informed "of the legal basis for the claim." Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979). Since the Supreme Court decision in Picard v. Connor, supra, it has become increasingly clear that the Second Circuit will "construe rather narrowly the issue . . whether the state court had been given the opportunity to decide the same `ultimate question for disposition.'" Johnson v. Metz, 609 F.2d 1052, 1054 (2d Cir. 1979).

Thus, where a federal constitutional claim is raised in the state proceedings, the district court must closely scrutinize the record to make sure that the very same claim was "fairly presented" to the state courts. See, e. g., Mayer v. Moeykens, 494 F.2d 855, 858-59 (2d Cir.), cert. denied, 417 U.S. 926, 94 S.Ct. 2633, 41 L.Ed.2d 229 (1974) (claim that police lacked probable cause for arrest different from claim that arrest warrant was insufficient); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2d Cir. 1974) (general assertion that search and seizure "was in violation of my constitutional rights" did not fairly present claim that search and seizure was fruit of an illegal interrogation); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972) (general due process argument concerning failure of trial judge to grant severance did not exhaust related Brady argument).

Furthermore, in applying its principle of narrow construction, the Second Circuit has required that, even where the legal substance of a federal claim has been presented to the state courts, the argument in state court be labelled "federal" and be...