Waterhouse v. Rodriguez

• Citation: 660 F. Supp. 319
• Decision Date: 14 May 1987
• Docket Number: No. CV 86 4262.,CV 86 4262.
• Parties: Robert B. WATERHOUSE, New York Parole Number AU60100, Florida State Prison Inmate Number 075376, Petitioner, v. Ramon J. RODRIGUEZ, Chairman of the New York State Board of Parole, Robert Abrams, The Attorney General of the State of New York, Louie L. Wainwright, Secretary of the Florida Department of Corrections, and R.L. Dugger, Superintendent of the Florida State Prison, Respondents.
• Court: U.S. District Court — Eastern District of New York

660 F. Supp. 319

Robert B. WATERHOUSE, New York Parole Number AU60100, Florida State Prison Inmate Number 075376, Petitioner, v. Ramon J. RODRIGUEZ, Chairman of the New York State Board of Parole, Robert Abrams, The Attorney General of the State of New York, Louie L. Wainwright, Secretary of the Florida Department of Corrections, and R.L. Dugger, Superintendent of the Florida State Prison, Respondents.

No. CV 86 4262.

United States District Court, E.D. New York.

May 14, 1987.

Ira S. Sacks, James D. Herschlein, Kaye, Scholer, Fierman, Hays & Handler, New York City, for petitioner.

Demetri M. Jones, Asst. Dist. Atty., (Patrick Henry, Dist. Atty.), Suffolk County, Riverhead, N.Y., for respondents.

MEMORANDUM AND ORDER

GLASSER, District Judge:

On March 13, 1967, during his trial for the murder of Ella Mae Carter on February 11, 1966, petitioner Robert Waterhouse withdrew his plea of not guilty and pleaded guilty to second degree murder in full satisfaction of the indictment. On April 28, 1967, the County Court of the State of New York for the County of Suffolk sentenced Waterhouse to imprisonment for twenty years to life. The court sentenced Waterhouse to the same sentence, nunc pro tunc, on October 29, 1969. This procedure permitted him to appeal from the judgment of conviction, which he did, unsuccessfully. People v. Waterhouse, 38 A.D.2d 1010, 331 N.Y.S.2d 372 (2d Dep't 1972) (mem.), aff'd mem., 35 N.Y.2d 688, 319 N.E.2d 422, 361 N.Y.S.2d 160 (1974).

Waterhouse was paroled in 1975. Some years later, a Florida jury found him guilty of first degree murder in the January 2, 1980 death of Deborah Kammerer. The Supreme Court of Florida affirmed the judgment of conviction and the accompanying sentence of death. Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983).

Waterhouse is currently incarcerated in Florida and is pursuing a collateral attack on his conviction in that state. His petition for a writ of habeas corpus, 28 U.S.C. § 2254, in this court seeks vacatur of his New York conviction. Waterhouse is subject to future New York incarceration because the murder of which he was convicted in Florida would constitute a violation of parole. Moreover, the Florida sentencing court found five aggravating circumstances supporting imposition of the death penalty, two of which were "that Waterhouse had previously been convicted of second-degree murder in the State of New York, a felony involving violence" and "that at the time of the murder of Deborah Kammerer, Waterhouse was on parole from the sentence imposed upon him for the New York murder (and was therefore under sentence of imprisonment)." Waterhouse v. State, supra, 429 So.2d at 306.

Waterhouse advances three arguments in support of his petition. First, he contends that his New York conviction was obtained through the use of a coerced confession, in violation of the fifth and sixth amendments. Second, he maintains that his plea of guilty was not made voluntarily and with an understanding of the nature of the charge and the consequences of the plea, in violation of substantive and procedural due process. Third, he argues that he was denied his sixth amendment right to the effective assistance of counsel.

The State of New York responds that Waterhouse failed to exhaust his state remedies on the second and third claims. Because exhaustion is required by 28 U.S.C. § 2254(b) and (c), the State urges the dismissal of the entire petition or, in the alternative, Waterhouse's withdrawal of his unexhausted claims. See, e.g., Holland v. Scully, 797 F.2d 57, 64 (2d Cir.) (upon dismissal of petition for failure to exhaust some claims, petitioner has option of returning entire case to state courts or deleting unexhausted claims and bringing petition again in district court), cert. denied, ___ U.S. ___, 107 S.Ct. 237, 93 L.Ed.2d 162 (1986); Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir.1984) (same). In addition, the State contests the merits of Waterhouse's three claims.

For the reasons that follow, the court concludes that Waterhouse has exhausted his state remedies on his third claim — that he was denied the effective assistance of counsel — and that the claim has merit. Accordingly, Waterhouse's petition for a writ of habeas corpus is granted conditionally.

I. Exhaustion

This court recently observed:

It has long been settled "that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus." Picard v. Connor, 404 U.S. 270, 275 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); accord, e.g., Harris v. Scully, 779 F.2d 875, 878 (2d Cir.1985).

Gandia v. Hoke, 648 F.Supp. 1425, 1427 (E.D.N.Y.1986), aff'd mem., 819 F.2d 1129, (2d Cir.1987). Typically, unless it is crystal clear that a petitioner has exhausted his state remedies, the State of New York will claim that he has not. But our court of appeals has enunciated a generous standard on exhaustion:

In summary, the ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). The court finds that Waterhouse has satisfied the requirements of Daye.

Waterhouse's claim that he was denied the effective assistance of counsel has two branches. The second branch, which the court does not reach, is that Waterhouse was the victim of bad lawyering in a pretrial hearing and in his appeal to the New York Court of Appeals. The first branch, which the court finds exhausted and meritorious, is that Waterhouse's attorney was disbarred during the pretrial hearing.

The pretrial "Huntley hearing," see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), concerned Waterhouse's contention that his confession was coerced. Waterhouse was represented throughout the Huntley hearing by Edward LaFreniere, who was disbarred on the second day of the hearing. See Suffolk County Bar Association v. LaFreniere, 26 A.D.2d 946, 274 N.Y.S.2d 656 (2d Dep't 1966), motion for leave to appeal dismissed, 19 N.Y.2d 809, 226 N.E.2d 700, 279 N.Y.S.2d 967 (1967). On the same day, the hearing court concluded that Waterhouse "knowingly, intelligently and voluntarily waived his rights and the statement is admissible," Tr. 183.

At trial, which began more than three months later before a different judge, Waterhouse's new attorney, Harry R. Brown, repeatedly requested a new Huntley hearing. The main thrust of Brown's argument was that he should not be bound by the hearing court's determination, because LaFreniere failed to call a crucial witness. Brown stated: "I want to reopen this on the grounds that it's my opinion that this defendant's constitutional rights have been violated." Tr. 227. Although Brown did not raise the subject of LaFreniere's disbarment explicitly, he did raise a sixth amendment claim when he said that prior counsel failed to call a vital witness and that this violated Waterhouse's constitutional rights.

What is more, when Waterhouse petitioned in April 1969 for a writ of error coram nobis, he raised the question of ineffective assistance of counsel by discussing the disbarment of LaFreniere and his failure to call important witnesses. The attack on LaFreniere's effectiveness continued in Waterhouse's briefs in the appellate division and the court of appeals. See, e.g., Brief for Appellant at 11, People v. Waterhouse, 35 N.Y.2d 688, 319 N.E.2d 422, 361 N.Y.S.2d 160 (1974) ("The threat of disbarment facing Mr. LaFreniere on the day of the Huntley hearing substantially affected that attorney's representation of the appellant.").

It is true that Waterhouse did not present his sixth amendment claim to the state courts with the same care and thoroughness that he demonstrated in this court. But he gave the state courts a fair chance to decide the sixth amendment claim, and that suffices to satisfy the exhaustion requirement. In light of this court's conclusion that Waterhouse did present his sixth amendment claim to the state trial and appellate courts, the court finds no merit in the State's contention that there was a procedural waiver within the meaning of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Because Waterhouse adequately presented his sixth amendment claim to the state courts, the court turns to the merits of the claim.

II. Sixth Amendment Claim

Twenty years ago, the D.C. Circuit held that the sixth amendment, which guarantees criminal defendants the assistance of counsel, is violated when a defendant is represented by an individual who is not a member of the bar. Writing for the court, Judge Robinson stated:

Failure to heed the constitutional admonition that the accused enjoy the right to assistance of counsel negates completely the court's jurisdiction to proceed. The proceeding is void, the occurrences therein are vitiated; transpirations otherwise legal go for naught.

Harrison v. United States, 387 F.2d 203, 212 (D.C.Cir.1967) (footnote omitted), rev'd on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). In an opinion by Judge Friendly, the Second Circuit read Harrison as stating a per se rule and adopted that rule. Solina v. United States, 709 F.2d 160, 168 (2d Cir.1983). Solina had been represented at trial by a law school graduate who was never admitted to practice law. Id. at...