Washington v. James

Decision Date29 June 1993
Docket NumberD,No. 525,525
PartiesWill WASHINGTON, Petitioner-Appellant, v. Charles JAMES, Respondent-Appellee. ocket 91-2534.
CourtU.S. Court of Appeals — Second Circuit

Karen G. Leslie, New York City, for appellant.

Martin A. Hotvet, Asst. Atty. Gen., State of NY, New York City (Robert Abrams, Atty. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of counsel), for appellee.

Before: MESKILL, Chief Judge, OAKES and KEARSE, Circuit Judges.

MESKILL, Chief Judge:

Appellant Will Washington appeals from a judgment entered in the United States District Court for the Western District of New York, Curtin, J., denying his petition for a writ of habeas corpus. Washington argues that the district judge erred on the merits. We do not reach the merits, however, because we believe that Washington procedurally defaulted his federal claim by failing to raise it adequately before the state courts. Because neither party briefed this issue, we requested supplemental briefs from both parties addressing the following question:

Whether, and to what extent, the analysis in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), should be applied by a federal appellate court reviewing the denial of a habeas petition in determining whether to reach the merits of a constitutional argument, where the state prosecutor has incorrectly conceded that the argument was properly raised to the state courts and therefore failed to object in the district court that the argument could not be raised because of procedural default.

We hold that Washington's procedural default may not be excused either under Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or under Granberry, and accordingly we affirm the judgment of the district court.


On May 27, 1986 Undercover Officer Joe Petronella picked up Ms. Verenda Starks in his car and they set off to buy drugs, as arranged. Petronella had purchased drugs from Starks before. The two were accompanied by a confidential informant who was unavailable for the trial. Petronella was wired and his conversations were recorded by a surveillance team.

Starks did not know exactly where to find drugs because it seems she had not used them in some time. Nevertheless, she finally led Petronella to a street in Buffalo where Washington was standing. Petronella parked the car a half block beyond the spot where appellant was standing, and Starks got out and walked back to him. After talking with him for a few moments (he was a friend), she returned to the car and told Petronella that heroin cost $15 per bag. Starks testified that Petronella had already given her $50 to buy five bags on her original belief that each bag cost $10. Ultimately he gave her a total of $60 to buy four bags. She then asked Washington to enter a nearby dope house and purchase the heroin for her. Washington was in and out in under five minutes. After giving the drugs to Starks, he walked back to where he had been and Starks got back into the car. Petronella gave Starks $10 for her efforts. Although the prosecution speculated that Washington kept the extra $5 per bag, there is no evidence that he received any benefit for buying the drugs.

Both Washington and Starks were indicted in Erie County as accomplices in the Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.39 (McKinney 1992), and the Criminal Possession of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.16 (McKinney 1992). Criminal sale requires that the defendant knowingly and unlawfully sell a narcotic drug. Criminal possession requires that the defendant knowingly and unlawfully possess a narcotic drug with the intent to sell. Although the jury found Washington guilty of criminal sale, it deadlocked on the criminal possession charge. The People eventually dropped the criminal possession charge and Washington was sentenced to 4- 1/2 to 9 years in prison for criminal sale.

At trial the prosecution had to prove (1) that Starks knowingly sold drugs to Petronella, and (2) that Washington was her accomplice. Under New York law a defendant cannot be found guilty of criminal sale if he obtains drugs merely as a favor for the buyer. Therefore, the prosecution also bore the burden of disproving Washington's "agency defense." Washington's agency theory was that he was merely accommodating Starks--that he was doing a favor for a friend. As far as he was concerned the subsequent Starks-Petronella transaction was entirely separate.

After unsuccessful appeals to the state appellate courts, Washington petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argued that the state trial judge's jury instructions deprived him of a fair trial because the judge effectively vitiated his agency defense theory by committing three errors in the charge. First and foremost, Washington complained that the trial judge charged the jury that he would escape conviction if "he acted as an agent for Petronella " (emphasis added). Washington contended that his defense was that he was Starks' agent and that he had nothing at all to do with Petronella. According to Washington, however, the trial judge never raised this possibility to the jury. In addition, Washington argued that the trial court effectively removed from the prosecution the burden of proving accomplice liability and of proving who the "buyer" and "seller" were in the transaction. 1 For instance, the trial judge stated unequivocally that "I have determined as a matter of law that Verenda Starks was an accomplice." Similarly, when questioned by the jury, the judge "defined" Starks as the seller and Petronella as the buyer. Washington maintained that by deciding as a matter of law that he was an accomplice of the seller Starks, the trial judge effectively eliminated the prosecution's burden of disproving the agency defense.

Judge Curtin denied the petition in an order dated October 30, 1991. He reasoned that although the state court judge did indeed charge the jury incorrectly as to the agency defense, the error did not "so infect[ ] the entire trial that the resulting conviction violated due process." 2 Pursuant to 28 U.S.C. § 2253, we issued a certificate of probable cause on June 3, 1992.


Washington's conviction in the Erie County trial court was affirmed by the Fourth Department of the Appellate Division in a short memorandum decision. People v. Washington, 151 A.D.2d 973, 542 N.Y.S.2d 419 (4th Dep't 1989). The defendant's application for a certificate granting leave to appeal to the New York Court of Appeals was denied on August 11, 1989. People v. Washington, 74 N.Y.2d 821, 546 N.Y.S.2d 579, 545 N.E.2d 893 (1989). The government initially conceded in federal district court and before us that Washington had exhausted his state remedies as required by 28 U.S.C. § 2254. However, in its supplemental brief filed at our behest after oral argument, the government admitted that its concession was erroneous. We agree. We believe that Washington has not given the state courts an adequate opportunity to address the issue he presents to us. Because he has no further recourse in the state courts, we hold that he is procedurally barred from raising his argument in federal court.

I. Presentation of Federal Claims to State Courts

Washington did not fairly present to the state courts the question whether the trial judge's agency instruction was constitutionally infirm and deprived him of due process of law. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (per curiam). Washington's argument both before the Appellate Division and in his application for leave to appeal to the New York Court of Appeals was that the evidence was insufficient to negate his defense that he acted as the agent of the buyer, Starks. While the state courts undoubtedly were alerted to the federal constitutional nature of the claim, there is a marked difference between an insufficiency claim and a claim that an erroneous jury instruction violated due process. While both claims are grounded in the notion that due process is violated unless every element of a crime is proven beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the state courts surely could have found that the evidence was sufficient to negate appellant's agency defense without having contemplated whether the jury had been unconstitutionally barred from considering that evidence because of an erroneous instruction. In short, the " 'ultimate question for disposition' " in state court, Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (quoting United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir.1966)), was not the same as the question presented to us.

Washington also argued to the state courts that the trial judge "expressed a predisposition as to appellant's guilt." In our opinion, the crux of this argument was that the trial judge demonstrated bias against Washington and influenced the jury to accept the prosecution's view of accomplice liability and who the "buyer" and "seller" were. Indeed, Washington mimicked the language of his trial counsel whose only objection at trial to the jury charge was that the jury "may view the Court as having a predisposition or a decision that each of those things were [sic] true."

Exhibiting a predisposition or bias is simply not the same as improperly removing from the prosecution the burden of disproving the agency defense. The first goes to how the jury perceives the facts, the second to whether the jury is permitted to consider those facts. Moreover, to the extent that Washington suggested in his state court briefs that the trial judge took from the jury the questions of accomplice liability and who the "buyer" and "seller" were, he utterly failed to link these errors...

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