United States ex rel. Weems v. Follette

• Decision Date: 28 July 1969
• Docket Number: Docket 32938.,No. 352,352
• Citation: 414 F.2d 417
• Parties: UNITED STATES of America ex rel. Walter WEEMS, Jr., Relator-Appellant, v. H. W. FOLLETTE, Warden of Green Haven State Prison, Stormville, N. Y., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

414 F.2d 417 (1969)

UNITED STATES of America ex rel. Walter WEEMS, Jr., Relator-Appellant, v. H. W. FOLLETTE, Warden of Green Haven State Prison, Stormville, N. Y., Respondent-Appellee.

No. 352, Docket 32938.

United States Court of Appeals Second Circuit.

Argued February 6, 1969.

Decided July 28, 1969.

Louis L. Hoynes, Jr., New York City, for relator-appellant.

Hillel Hoffman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Stephen Seligman, Deputy Asst. Atty. Gen., on the brief), for respondent-appellee.

Before ANDERSON and FEINBERG, Circuit Judges, and MANSFIELD, District Judge.^*

FEINBERG, Circuit Judge:

In 1963, appellant Walter Weems, Jr. was convicted in the New York State Supreme Court, Kings County, on three counts of first degree robbery and was sentenced to concurrent sentences of ten to thirty years on each count. The conviction was upheld by the Appellate Division, People v. Weems, 23 A.D.2d 701, 258 N.Y.S.2d 231 (2d Dept. 1965), and the Court of Appeals, 17 N.Y.2d 598, 268 N.Y.S.2d 352, 215 N.E.2d 527 (1966).¹ Thereafter, Weems petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York. In October 1968, that court denied the writ, Charles M. Metzner, J., and this appeal is from that denial. For reasons set forth below, we affirm.

Appellant's claim is that his conviction cannot stand because it was based on the evidentiary use against him of stolen clothing which was obtained in an allegedly illegal search and seizure in his apartment. In the court below, as well as on appeal in the state courts, appellant was found to have waived this claim by making only a general objection at trial to the admission of the clothing into evidence, rather than by moving under sections 813-c and 813-d of the New York Code of Criminal Procedure for its suppression at or prior to trial. The question whether Weems waived his right to make a federal constitutional claim by failure to follow state procedures presents difficult issues. See, e. g., United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969); cf. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). However, after oral argument we concluded that because the sentences on all three counts were concurrent it might not be appropriate to reach those issues if the clothing in question affected only one of the three counts. Accordingly, we called this to the attention of counsel, with an invitation to address themselves to the effect of these circumstances. They have done so, and we conclude that consideration of the underlying constitutional issues is not called for.

We have often followed the rule in this circuit "that a defendant may not complain of error on one count when he receives concurrent sentences on several counts," United States v. Costello, 381 F.2d 698, 700 (2d Cir. 1967), citing Lawn v. United States, 355 U.S. 339, 359, 362, 78 S.Ct. 311, 2 L.Ed.2d 721 (1958); indeed, we have characterized the rule as "familiar." United States v. Youngblood, 379 F.2d 365, 367 (2d Cir. 1967); see, e. g., United States v. Marino, 396 F.2d 780 (2d Cir. 1968) (per curiam); United States v. Scandifia, 390 F.2d 244, 250 (2d Cir. 1968). It is true that on rare occasion we have set aside a conviction on otherwise presumably "good" counts because of defects in the conviction of a defendant on "bad" counts. See United States v. Barash, 365 F.2d 395, 403 (2d Cir. 1966); cf. United States v. Hines, 256 F.2d 561, 563 (2d Cir. 1958). But Barash was an extreme case; convictions on 24 of 26 counts were reversed on appeal. In Hines, appellant had been convicted on three separate counts of possessing, forging and uttering a stolen Treasury check. Criticizing the "concurrent sentence" doctrine of Lawn v. United States, supra, this court held that it had the power to consider an attack on only the one count relating to possession of the check if

the nature of the error committed below or other circumstances suggest that the accused might have received a longer sentence than otherwise would have been imposed, or that he had been prejudiced by the results of the proceedings.

We went on to reverse the conviction on that one "bad" count and vacated the sentences on the other two counts, but only for the purpose of resentencing. We have since recognized this gloss on the Lawn rule in United States v. Bottone, 365 F.2d 389, 394 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L. Ed.2d 437 (1966). Nevertheless, we accepted the argument there that the "good" counts should stand, noting that in doing so:

we would not wish to be understood as giving all-out obeisance to the validation of concurrent sentences by the presence of one or more good counts citing Lawn; despite frequent reliance on this principle where appropriate, we adhere to Judge Clark\'s statement in Hines * * *. But this is not such a case.

Even more recently, the Supreme Court has examined the concurrent sentence doctrine in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (U.S. 1969). The Court stated that the rule is not a jurisdictional bar to consideration of an attack on a "bad" count and threw some doubt on the continued strength of the doctrine. However, we do not read the Court's opinion as preventing use of the rule altogether. The opinion in Benton stated, at 791, 89 S.Ct. at 2060:

It may be that in certain circumstances a federal appellate court, as a matter of discretion, might decide (as in Hirabayashi v. United States, 320 U. S. 81 (1943)) that it is "unnecessary" to consider all the allegations made by a particular party. The concurrent sentence rule may have some continuing validity as a rule of judicial convenience. Footnote omitted.

Moreover, the Court indicated that there was less objection to use of the doctrine in connection with a collateral attack on a conviction, as in this case, as distinguished from a direct appeal, 395 U.S. at 793 n. 11, 89 S.Ct. 2056. As indicated above, the state courts have never ruled on the merits of the constitutional issue appellant raises, and the question whether he has waived it by bypassing state procedures or as a matter of deliberate trial strategy is difficult. In view of our past precedents and the allowable discretion we find still exists for us in this case under Benton, we believe that it is appropriate to avoid decision of the constitutional issues if we fairly conclude that appellant was not prejudiced at his trial by the assumed error in the state court proceeding. Accordingly, we turn to that question, using the Hines statement as an analytical tool.

Appellant was convicted on three separate counts of robbery in the first degree, receiving on each an indeterminate sentence of from ten to thirty years, the respective minimum and maximum fixed by the statute.² There is no basis in the record for concluding that his sentence on any of the three counts was longer or that his eligibility for parole will be decreased because of an improper conviction on one count. Appellant was tried for crimes arising out of three separate incidents which occurred in Brooklyn in less than two weeks in November 1962. According to the state court record, there was evidence from which the...