U.S. ex rel. Regina v. Lavallee

• Decision Date: 24 February 1975
• Docket Number: 1067,D,Nos. 1066,s. 1066
• Citation: U.S. ex rel. Regina v. Lavallee, 504 F.2d 580 (2nd Cir. 1975)
• Parties: UNITED STATES of America ex rel. Anthony REGINA, Petitioner-Appellant, v. Edwin LaVALLEE, Superintendent, State Correctional Facility at Dannemora, NewYork, Respondent-Appellee. UNITED STATES of America ex rel. John J. BATTISTA, Petitioner-Appellant, v. Harold N. BUTLER, Superintendent, State Correctional Facility at Wallkill, NewYork, Respondent-Appellee. ockets 73-2722, 73-2737.
• Court: U.S. Court of Appeals — Second Circuit

Page 580

504 F.2d 580

UNITED STATES of America ex rel. Anthony REGINA, Petitioner-Appellant, v. Edwin LaVALLEE, Superintendent, State Correctional Facility

at Dannemora, NewYork, Respondent-Appellee.

UNITED STATES of America ex rel. John J. BATTISTA, Petitioner-Appellant, v. Harold N. BUTLER, Superintendent, State Correctional

Facility at Wallkill, NewYork, Respondent-Appellee.

Nos. 1066, 1067, Dockets 73-2722, 73-2737.

United States Court of Appeals, Second Circuit.

Argued June 10, 1974.

Decided Oct. 2, 1974, Certiorari Denied Feb. 24, 1975, See

95 S.Ct. 1330.

Betty D. Friedlander, Waverly, N.Y. (Victor J. Rubino, New York City, on the brief), for petitioners-appellants.

Arlene R. Silverman, Asst. Atty. Gen. of N.Y. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondents-appellees.

Before HAYS, MANSFIELD and TIMBERS, Circuit Judges.

HAYS, Circuit Judge:

Petitioners brought this action for habeas corpus relief under 28 U.S.C. 2254 (1970) claiming that at the state court trial at which they were convicted the prosecution had failed to disclose a promise of leniency to a key prosecution witness. The district court denied relief. We affirm.

In early 1964 appellants were convicted in a New York court of first degree murder and first degree assault. The prosecution based its case in part on the testimony of one Anthony Getch. The defense sought to discredit this testimony by claiming that Getch, who had been subject to being returned to prison as a parole violator, had been promised an early release from prison in return for his cooperation. However, the defense did not call as a witness either Assistant District Attorney Catterson, the prosecutor at the trial, or former Assistant District Attorney Bendersky, who had handled part of the pre-trial preparation of the case prior to leaving the District Attorney's office. These were the two persons who the defense claimed might have made the promise. Both Getch and the prosecution denied that any such promise had been made.

The convictions were affirmed by the Appellate Division, 25 A.D.2d 658, 268 N.Y.S.2d 1006 (2d Dep't 1966) and by the New York Court of Appeals, 19 N.Y.2d 65, 224 N.E.2d 108, 277 N.Y.S.2d 683 (1966).

In 1970 appellants commenced a coram nobis proceeding in state court. The court conducted a hearing at which former Assistant District Attorney Bendersky testified that he had promised Getch that in return for his cooperation he would be released within a few months. However, other persons who had been present when the promise was alleged to have been made testified that no promise was made concerning Getch's release. The court concluded that Regina and Battista had failed to discharge their burdens of proving that a promise had been made. The Appellate Division affirmed and leave to appeal to the New York Court of Appeals was denied.

Appellants then commenced this habeas corpus proceeding, relying on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The district court denied relief on the grounds that under 28 U.S.C. 2254(d) (1970) it had to presume that the state court's finding was correct, and that the alleged promise, even if it had been made, was not sufficiently material to warrant a new trial. We affirm.

28 U.S.C. 2254(d)(8) (1970) provides that in habeas corpus proceedings by a state prisoner the federal courts shall presume the findings of fact by a state court to be correct unless they are 'not fairly supported by the record.' ¹ See Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Sabella v. Follette, 432 F.2d 572, 574-575 (2d Cir. 1970) cert. denied, 401 U.S. 920, 91 S.Ct. 905, 27 L.Ed.2d 822 (1971); United States ex rel. Liss v. Mancusi, 427 F.2d 225, 227-229 (2d Cir. 1970); United States ex rel. Fein v. Deegan, 410 F.2d 13, 17 (2d Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450 (1969). If the findings are supported by the record the petitioner bears the burden of showing that they are erroneous.

In this case the record of the state coram nobis proceeding supports the finding of the state court, and petitioners have not shown the findings to be erroneous. The only testimony in behalf of appellants was given by Bendersky, who met with Getch on September 18, 1963, to discuss Getch's cooperation in the prosecution of Regina and Battista. Getch first expressed fear for the safety of his family and Bendersky assured him that they would receive protection. Bendersky claimed that he then further promised Getch that in return for his cooperation an effort would be made to release him after a few months. His testimony was somewhat equivocal, however. He qualified his remarks with such statements as 'to my recollection' and 'I believe that I told him.' His uncertainty is not surprising since the meeting at which he allegedly made the promise occurred six years before the coram nobis hearing.

Several witnesses testified in opposition to appellant's petition. William J. Quinn, an employee of the New York State Division of Parole at the time of the meeting, testified that he was present throughout the meeting and heard the promise of protection for Getch's family, but that Bendersky had never promised Getch an early release from prison or even discussed the matter with Getch or anyone else. Orey Edwards, an employee of the Suffolk County Police Department, also testified that he attended the entire meeting of September 18 and heard the promise of protection but that Bendersky neither made any promise concerning nor even discussed the subject of Getch's parole.

The testimony of these two witnesses furnishes fair support in the record for the state court's finding. But there was additional evidence which further but-tresses the finding. Getch himself had testified at the trial that no promise had been made. James Catterson, Jr., who became an Assistant District Attorney in Suffolk County on September 1, 1963, and took over prosecution of appellants, testified that in January or February of 1964 he met with Bendersky to discuss the case. He asked Bendersky whether any promises had been made to Getch, and Bendersky replied that no promises had been made except the promise to protect Getch's family. Catterson also testified that he spoke to Getch before speaking to Bendersky and that Getch had told him no promises had been made. John McCarthy, a parole officer with the New York State Division of Parole, testified that he was present during the first part of the meeting of September 18 and that he heard no promise of early release. Quinn, Edwards and McCarthy also testified that Bendersky never discussed Getch's parole status with them or, to their knowledge, with anyone else connected with the Division of Parole. Appellants produced no testimony that Bendersky had discussed the matter with anyone else.

The testimony at the coram nobis proceeding also showed that shortly after the meeting of September 18 began, a stenographer was brought in to take the minutes of the meeting. The minutes contain many references to promises of protection, but the only reference to Getch's release tends to negate appellants' claim. The minutes show that near the end of the meeting Getch asked Quinn if it would be possible for him 'to get home before Christmas' and that Quinn replied that 'this matter would have to be discussed with the Parole Board and that Getch would be advised of their decision in the future.'

The conclusion of the state court was 'fairly supported by the record.' Under the circumstances the district court acted properly in denying the habeas corpus petition without a hearing. See, e.g., United States ex rel. Liss v. Mancusi, supra, 427 F.2d at 227-229.

Appellants claim that under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), it was improper for the state court to weigh the conflicting evidence in the coram nobis proceeding and for the federal district court to accept the state court's conclusions. They assert that once the new evidence was presented the court was obliged to order a new trial so that the conflicting evidence could be weighed by a jury. Under the Circumstances of this case we cannot agree.

First, by failing to call Bendersky as a witness at trial appellants waived their right to claim that he had made a promise to Getch. Unlike Giglio, this is not a case where defendants had no inkling of a promise at the time of the trial. An alleged promise by Bendersky was an integral part of the defense. Bendersky was readily available as a witness. The defense consciously decided not to call him. Appellants should not be permitted first to claim before the jury that a promise was made, without calling the person who purportedly made the promise, and then only after the first tactic had failed, to call that person as a witness in a habeas corpus proceeding in an attempt to...