United States ex rel. Gibbs v. Zelker

Decision Date23 April 1974
Docket NumberNo. 75,Docket 73-1391.,75
Citation496 F.2d 991
PartiesUNITED STATES of America ex rel. Lonnie Leston GIBBS, Petitioner-Appellant, v. John L. ZELKER, Superintendent of Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Michael Young, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for petitioner-appellant.

Gene B. Mechanic, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Stanley L. Kantor, Deputy Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.

Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

Petitioner Gibbs, a New York state prisoner now incarcerated at the Green Haven Correctional Facility, appeals from an order entered February 28, 1973 in the Southern District of New York, Lee P. Gagliardi, District Judge, dismissing without a hearing Gibbs' second petition for a writ of habeas corpus. We affirm the dismissal of the petition on the ground that Gibbs has not exhausted state remedies as required by 28 U.S.C. § 2254(b) and (c) (1970). Specifically, we hold that, since he did not raise in the New York state courts the same federal constitutional claims which he now urges upon the federal courts, the New York courts did not have a fair opportunity to consider those claims. Picard v. Connor, 404 U.S. 270, 276 (1971); United State ex rel. Nelson v. Zelker, 465 F.2d 1121, 1123-25 (2 Cir.), cert. denied, 409 U.S. 1045 (1972).

Gibbs and his co-defendant Navarro were convicted of second degree murder on September 30, 1966 in the Rockland County Court after a 10 day jury trial before Judge (now Justice) Morton B. Silberman. On October 24, 1966, Gibbs was sentenced to a term of 20 years to life. His conviction was affirmed on direct appeal by the Appellate Division on July 7, 1969, 32 App.Div.2d 1028, 303 N.Y.S.2d 836 (2nd Dept. 1969) (mem.), and by the New York Court of Appeals on November 17, 1971, 29 N.Y.2d 754, 276 N.E.2d 236, 326 N.Y.S.2d 402 (1971) (mem.). While Gibbs' direct appeals were pending in the New York courts, he filed in the Rockland County Court two coram nobis petitions which were denied by Judge Silberman on July 8, 1967 and by Judge Kelly on February 17, 1971, respectively.1

The crime of which Gibbs was convicted occurred on April 4, 1966. Late that day the body of Archie Loper was found in a parking lot in Spring Valley, New York. He had been stabbed to death. Shortly after the discovery of Loper's body, the Spring Valley police arrested Navarro in connection with the murder. Navarro was a friend and roommate of Gibbs.

Later on the evening of April 4, Gibbs was taken to the Spring Valley police station for questioning concerning the death of Loper. He was questioned by the chief of police and several policemen, as well as by the district attorney and several members of his staff.

The next day, April 5, he was taken before an acting police justice who ordered him confined as a material witness. He was so confined until April 28 when he was indicted, along with Navarro, for the Loper murder.

On April 7, after consulting with his girlfriend who previously had spoken with the police, Gibbs led the police to a vacant lot where they found hidden among the bushes a small knife which belonged to Navarro and was said to be the murder weapon.

During this entire period, beginning with his initial questioning on April 4 until his indictment on April 28, Gibbs was held without the assistance of counsel; nor was he informed that he was entitled to counsel.

It is the propriety of the introduction of the knife and the testimony about Gibbs leading the police to the knife that is the subject of the instant habeas corpus petition.

Cutting through the procedural morass which has ensued in the federal courts since Gibbs filed his first petition for a writ of habeas corpus in the Southern District of New York on January 27, 1972, we focus upon the essential claim that has now emerged, namely, whether certain of his federal constitutional rights were violated by the admission in evidence at his state trial of the knife and testimony concerning Gibbs leading the police to the knife. Despite Gibbs' assertion before us and the district court's finding below that Gibbs had exhausted state remedies, our threshold inquiry must be directed to that issue, for absent compliance with the exhaustion requirement of § 2254(b) and (c), the district court would have had no jurisdiction to grant habeas corpus relief to this state prisoner upon a claim of denial of federal constitutional rights raised in the federal court for the first time.

Gibbs argues that admission of the challenged evidence violated his constitutional rights on two grounds. First, he claims that his detention as a material witness was constitutionally impermissible because the order confining him was illegal under New York law, having been signed by an acting police justice rather than by a judge of a court of record. Gibbs asserts that, since the evidence concerning the knife and his knowledge of its whereabouts was a fruit of this illegal detention, it was inadmissible at trial. Secondly, Gibbs claims that he was interrogated while in custody without having been given the Miranda warnings2 and that this illegal questioning led directly to the discovery of the knife. Accordingly, Gibbs contends that, since his rights under the Fourth, Fifth and Sixth Amendments were violated during his illegal detention between April 4 and April 28, 1966, the admission in evidence of the knife and related testimony as the tainted product of that detention and the questioning resulted in a constitutionally infirm conviction.

While we do not reach the merits of Gibbs' constitutional claims in view of our holding that he has not exhausted state remedies,3 we do note in passing that at least the Fifth Amendment claim is a most serious one.4 Although Miranda is notably silent on the question of the fruits of proscribed interrogation, we see no tenable distinction between a question requesting Gibbs to tell what happened after the killing and a request by the police that he show them where the knife had been discarded. The latter would seem to be as much within the scope of the privilege against self-incrimination as the former, even recognizing as we do that the privilege protects only against the giving of testimony.

The only indications in the papers before us that have any bearing upon exhaustion of state remedies are the affidavit of Gibbs in support of an unsigned order to show cause by which he sought to bring on a motion in the County Court to suppress the knife as evidence at trial, and Gibbs' brief in the New York Court of Appeals on his direct appeals.5 Our careful examination of both documents leaves us with the firm conviction that neither presented Gibbs' constitutional claims, which are now urged upon the federal courts, to the New York courts in such a manner as to afford the state courts a fair opportunity to consider them as required by Picard and Nelson.

The affidavit attached to the proposed order to show cause relies almost entirely on the asserted invalidity of Gibbs' detention under state law because the confinement order was signed by an acting police justice. There is no mention whatever of any Fifth Amendment claim such as that here raised, either denominated as such or spelled out in substance. The general assertion that "the search and resulting seizure of the aforementioned knife was in violation of my constitutional rights" was an even less adequate presentation to the state courts of the claim we consider Gibbs' strongest than was the presentation which we found inadequate in United States ex rel. Nelson v. Zelker, supra, 465 F.2d at 1125, while acknowledging there that "a general due process argument was made in the state court . . . ." Ibid.

Gibbs' brief in the New York Court of Appeals — a most puzzling document — is likewise inadequate to exhaust state remedies on the issues here sought to be raised. We are told that this brief is supposed...

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