United States v. Fay

Decision Date29 April 1966
Docket NumberNo. 145,Docket 29947.,145
Citation360 F.2d 389
PartiesUNITED STATES of America ex rel. Christopher ROMANO, Petitioner-Appellee, v. Hon. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent-Appellant.
CourtU.S. Court of Appeals — Second Circuit


Joshua N. Koplovitz, New York City (Anthony F. Marra, New York City, on the brief), for petitioner-appellee.

Barry Mahoney, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondent-appellant.

Before LUMBARD, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.

LUMBARD, Chief Judge.

The principal question for decision is whether the use of Christopher Romano's post-indictment statements made to a police officer and to an assistant district attorney so infected his 1953 New York trial and conviction with federal constitutional error that habeas corpus relief is warranted. The District Court for the Southern District of New York, Murphy, J., granted the writ and directed Romano's discharge or a prompt retrial. We reverse and remand with instructions to dismiss Romano's petition. We hold that the only infirmity in Romano's questioning and subsequent trial was an inconsistency with two Supreme Court decisions handed down more than ten years later, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and that those decisions should not be retrospectively applied to void Romano's conviction.

On January 28, 1950, Mrs. Margaret Hughes reported to New York City police that she had been beaten and raped the previous night at her home by a knife-wielding intruder known to her as "Chris." The description of this assailant given by Mrs. Hughes and by Eunice Lawlor, a sixteen-year-old baby sitter present during the alleged rape, led the investigating officers to suspect Romano, whom they had known previously. In the course of a fruitless three-day search for Romano, the police learned that he had left for Michigan. On February 10, 1950, an indictment was returned charging him with assault and rape.

In Michigan, Romano was convicted of larceny in May of 1950 and spent until March 1953 in a Michigan prison. Upon his release, Romano was brought by train back to New York and tried under both counts of the February 1950 indictment. He was convicted of first degree rape and second degree assault and given a ten to twenty-year sentence as a multiple felon on September 22, 1953.

At the trial, Mrs. Hughes described the circumstances surrounding the alleged rape, but she failed to identify Romano, who had lost considerable weight while in Michigan. However, eye-witness Eunice Lawlor corroborated Mrs. Hughes' testimony and made a positive identification. The prosecution then called Detective John A. Tracy, one of the officers who had brought Romano from Michigan to New York. Tracy testified, without objection, to a conversation with Romano during the train ride. He stated that, in response to questions "pertaining to the incident, the complaint of 1950," Romano had replied, "Can you rape a prostitute?" and then had asked "whether or not the withholding of the two dollar payment could be considered a rape." Upon cross-examination, Detective Tracy conceded that "at no time did Romano ever admit he raped Mrs. Hughes."

The prosecution's final witness was Barney Moss, a stenographer who read before the jury a statement made by Romano in response to questioning by Assistant District Attorney Lawrence J. Peltin after Romano arrived in New York from Michigan.1 In this statement, Romano had admitted his presence in Mrs. Hughes' room on the night in question but had denied committing the rape and had refused to answer questions concerning the details of his encounter with Mrs. Hughes.

The defense consisted solely of Romano's own protracted testimony. He described in detail his version of the events on January 27 and 28, 1950. He admitted his presence in Mrs. Hughes' apartment on that night, but he denied that they had had intercourse or that he had beaten her other than in self-defense. On cross-examination, he admitted making the statements attributed to him by Detective Tracy, but he contended that he and Tracy had not been discussing Mrs. Hughes' case at that time.

The prosecutor also attempted to use Romano's statement to Peltin for impeachment purposes on cross-examination by asking Romano why he had refused to answer Peltin's questions and yet had told the jury an exculpatory version of the events in question.2 Romano replied: "When I got questioned by Mr. Peltin I asked for my lawyer to be present, and he did not want my lawyer to be present. So, during the course of them questions I was saying, `No,' to every question that I thought shouldn't be answered at that time." Romano also explained that he had said nothing inculpatory to Peltin. "I admitted I was in the room. I didn't admit anything else, or say anything, yes or no, there, to them questions."

In this petition for habeas corpus relief, Romano alleges that his post-indictment statements to Tracy and Peltin were involuntary and that they were taken in violation of his Sixth Amendment right to counsel. There can be little doubt that the claim of involuntariness, under any standard, is frivolous. At trial, Romano admitted that he made the statements and that they were substantially true as related to the jury. No circumstances in any way supporting an inference of coercion were shown, and indeed Romano's counsel conceded the voluntariness of these statements during oral argument to this court.

As Romano at all times stoutly denied that he had committed the rape and assault for which he was convicted, we are dealing here not with confessions in the common sense but rather with arguably inculpatory comments and references to the circumstances surrounding the crime. According to the district court, the only infirmity in the conviction which it set aside lies in its determination that, had this criminal trial occurred after Massiah v. United States and Escobedo v. State of Illinois, these statements, if objected to, would have been excluded.3 As those decisions were handed down more than ten years after Romano's trial, there is squarely presented the question whether they should be given retroactive application under the integrated standards evolved by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and described in detail in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (Jan. 19, 1966).


A threshold question in any federal habeas corpus case is whether the petitioner has exhausted his state remedies. There is no point in recounting Romano's many applications for state and federal post-conviction relief prior to the instant petition. Suffice it to say that we agree with Judge Murphy that Romano's most recent unsuccessful application to the New York courts for coram nobis relief raised substantially the same issues that are presented here. See 21 App.Div.2d 754, 251 N.Y.S.2d 909, leave to appeal denied, Ct.App., July 13, 1964.

The exhaustion requirement is therefore satisfied, see, e. g., Brown v. Allen, 344 U.S. 443, 502, 73 S.Ct. 397, 97 L.Ed. 469 (1953), unless, as the State urges, Romano should be compelled to pursue New York's new post-conviction procedure for testing the voluntariness of confessions, see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), as we held in United States ex rel. Martin v. McMann, 348 F.2d 896 (1965). Judge Murphy rejected this contention because he found the allegations of involuntariness conclusory.

Despite our conclusion that Romano's involuntariness claim is frivolous and that his hope for relief lies in his Sixth Amendment contentions, we would be strongly disposed to remand his petition for a Huntley hearing as a matter of comity, see United States ex rel. Martin v. McMann, supra, except for two factors: first, it is now clear that New York would deny coram nobis relief for Romano's right to counsel claims because he raised no proper objection at trial, People v. Dash, 16 N.Y.2d 493, 260 N.Y. S.2d 437, 208 N.E.2d 171 (1965), approving People v. Howard, 12 N.Y.2d 65, 236 N.Y.S. 39, 187 N.E.2d 113 (1962);4 and second, we find no unresolved factual questions related to the Sixth Amendment claims raised here that would be developed at a Huntley hearing. Thus, we conclude that Romano has adequately exhausted his state remedies.


Petitioner argues that the Supreme Court's decision in Lyles v. Beto, 379 U.S. 648, 85 S.Ct. 613, 13 L.Ed.2d 552 (1965), precludes this court from holding that Massiah is not retroactive. The Court in Lyles remanded to the Fifth Circuit "for reconsideration in light of Massiah v. United States" a habeas corpus petition involving a pre-Massiah conviction. But we do not think that the Supreme Court meant to foreclose "consideration" of the retroactivity question. This seems abundantly clear from the Court's grant of certiorari in Johnson v. New Jersey, 382 U.S. 925, 86 S.Ct. 318, 15 L.Ed.2d 339 (Nov. 23, 1965), a case presently under consideration in which retroactivity is the principal issue.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), would not be applied retroactively, as this court had held in United States ex rel. Angelet v. Fay, 333 F.2d 12 (1964), aff'd, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965). Subsequent to oral argument in this case, the Court held that the doctrine of Griffin v. State of California, 380 U.S. 609, 85...

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