United States v. Criminal Ct. of City of NY, 584

• Decision Date: 26 April 1972
• Docket Number: Docket 71-2185.,No. 584,584
• Citation: 459 F.2d 745
• Parties: UNITED STATES ex rel. Stephen RADICH, Petitioner-Appellant, v. The CRIMINAL COURT OF the CITY OF NEW YORK et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

459 F.2d 745 (1972)

UNITED STATES ex rel. Stephen RADICH, Petitioner-Appellant, v. The CRIMINAL COURT OF the CITY OF NEW YORK et al., Respondents-Appellees.

No. 584, Docket 71-2185.

United States Court of Appeals, Second Circuit.

Argued March 24, 1972.

Decided April 26, 1972.

Shirley Fingerhood, New York City (Richard G. Green, Burt Neuborne, Melvin L. Wulf, Lawrence G. Sager, New York City, on the brief), for petitioner-appellant.

Maria L. Marcus, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondents-appellees.

Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.

MANSFIELD, Circuit Judge:

This appeal raises the interesting question, unlikely to recur, of whether an affirmance of a state court conviction by an equally divided vote of the United States Supreme Court bars the person convicted from later obtaining habeas corpus relief on constitutional grounds that were urged by him in his appeal to the Supreme Court. We hold that it does not and remand the petition for consideration on the merits.

On May 5, 1967, Stephen Radich was convicted in the Criminal Court of the City of New York of casting contempt on the American flag in violation of what was then § 1425(16) (d) of the N.Y. Penal Law, now recodified as § 136(d) of the N.Y. General Business Law (McKinney's Consol.Laws c. 20, 1968),¹ by displaying several "constructions" in the window of his art gallery, one of which was described by the trial court as "in the form of a large cross with a bishop's mitre on the head-piece, the arms wrapped in ecclesiastical flags and an erect penis wrapped in an American flag protruding from the vertical standard." People v. Radich, 53 Misc.2d 717, 718, 279 N.Y.S.2d 680, 682 (1967) (2-1 decision). He was sentenced to pay a $500 fine or serve 60 days in the workhouse. On appeal in the State system his conviction was affirmed. People v. Radich, 57 Misc.2d 1082, 294 N.Y.S.2d 285 (App. T. 1st Dept. 1968) (per curiam), affd., 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (1970) (5-2 decision). He then appealed to the Supreme Court of the United States, pursuant to 28 U.S.C. § 1257(2), arguing, as he had in the State courts, that his conviction violated the First and Fourteenth Amendments to the Federal Constitution.²

After oral argument on the merits the Supreme Court "affirmed by an equally divided Court." Radich v. New York, 401 U.S. 531, 91 S.Ct. 1217, 28 L. Ed.2d 287 (1971) (Mr. Justice Douglas did not participate). Promptly thereafter Radich sought relief by application for writ of habeas corpus in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 2241 et seq. There he advanced the same arguments previously made to the Supreme Court. In an unreported decision Judge Cannella denied relief on the ground that the affirmance of Radich's conviction by an equally divided Supreme Court constituted an actual adjudication by it on the merits of his Constitutional claims, which by statute, 28 U.S.C. § 2244(c),³ is a bar to subsequent federal habeas corpus relief. A certificate of probable cause was thereupon issued and this appeal was pursued. Execution of Radich's sentence has been stayed.

Our consideration of the effect upon a state prisoner's habeas corpus petition of a Supreme Court affirmance of his conviction by an equally divided vote requires us once again to review the purpose of the Great Writ and the reasons for sometimes denying it on the ground that the constitutional issues have been determined on the merits in another federal proceeding. The writ's objective as embodied in the Constitution and the Judiciary Act, is to assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have been decided on the merits by a state tribunal. Congress could have left the enforcement through habeas corpus of federal constitutional rights governing the administration of justice in cases of state prisoners exclusively to the states, since state courts are under the same duty as federal courts to observe and to enforce those rights. Claflin v. Houseman, 93 U.S. 130, 136-137, 23 L. Ed. 833 (1876). But beginning with the enactment of the Judiciary Act of 1867, 14 Stat. 385, now 28 U.S.C. § 2241 (c) (3), it chose to give to federal courts the duty of entertaining and adjudicating writs of habeas corpus filed by those who had been convicted in state court proceedings.

Fundamental to the concept of the federal writ as thus authorized by Congress is that the petitioner will be accorded an adjudication by a federal court of the constitutional issues, provided he makes out a prima facie case, has exhausted his state remedies, and has not without sound reasons deliberately by-passed a controlling state court rule or procedure. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Henry v. Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). If he meets these conditions, a federal redetermination of the constitutional issues is mandated. Although a federal district judge may consider and give weight to the state court's adjudication, ". . . State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide. . . . Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right." Brown v. Allen, 344 U.S. 443, 506, 508, 73 S. Ct. 397, 446, 97 L.Ed. 469 (1953) (concurring opinion of Justice Frankfurter) (emphasis supplied; fn. omitted). These principles were reaffirmed by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), where Chief Justice Warren, speaking for the court, stated:

"Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court\'s findings of fact, he may not defer to its findings of law. It is the district judge\'s duty to apply the applicable federal law to the state court fact findings independently. The state conclusions of law may not be given binding weight on habeas." (372 U.S. at 318, 83 S.Ct. at 760)

In guaranteeing that a state convict would have a federal determination of his constitutional claims on the merits Congress and the Supreme Court faced the necessity of developing principles of finality that would protect against successive applications to federal courts seeking to relitigate issues already decided by a federal tribunal. The problem was complicated by the fact that res judicata could not be invoked to preclude federal habeas relief.

"Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged. If `government . . . is always to be accountable to the judiciary for a man\'s imprisonment,\' Fay v. Noia, supra, 372 U.S. at 402 83 S. Ct. at page 829, access to the courts on habeas must not be thus impeded. The inapplicability of res judicata to habeas, then, is inherent in the very role and function of the writ." Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963).

With a view to limiting the habeas petitioner to one bite on the merits in the federal court system, the Supreme Court developed equitable principles calling for discretionary denial of the writ where there had been a prior federal adjudication on the merits, e. g., Salinger v. Loisel, 265 U.S. 224, 230-231, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Wong Doo v. United States, 265 U.S. 239, 240-241, 44 S.Ct. 524, 68 L.Ed. 999 (1924); Sanders v. United States, 373 U.S. 1, 8-10, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). In 1948 Congress, by its enactment of what is now 28 U.S.C. § 2244(a), codified these judicially-evolved principles. That statute, however, left open the question of whether a prior determination of the constitutional issues by the Supreme Court would bar habeas relief. Consistent with the overall scheme of allowing the petitioner to obtain one federal determination of those issues, Congress in 1966 enacted § 2244 (c), which provides that a prior judgment of the Supreme Court denying a federal right that would be a ground for discharge in a habeas corpus proceeding shall be conclusive as to those issues "actually adjudicated by the Supreme Court therein." It is this phrase which we are called upon to construe.

We have recited the foregoing background to shed light on the Congressional purpose behind § 2244(c). As we view it Congress, in enacting that supplement to the statute, did not intend it to deprive the habeas petitioner of his time-honored right to one federal adjudication on the merits merely because the constitutional issues had been raised in a prior proceeding before the Supreme Court. Only if the Supreme Court had actually decided the issues would its adjudication be final. Indeed the legislative history of the statute reveals that it was intended to help alleviate a growing burden on the lower federal courts imposed by frivolous habeas corpus petitions by state prisoners who had already had a full consideration and decision of their federal claims by the Supreme Court. See S.Rep. No. 1797, 89th Cong., 2d Sess. (1966). Affirmances by an equally divided court of a state court conviction can hardly have been in the contemplation of Congress;...