Keith Gayle v. Eugene Lefevre, Superintendent, Clinton Correctional Facility
613 F.2d 21
2d Cir.
1980
Check Treatment

*1 GURFEIN, Circuit Before OAKES PIERCE, Judges, Judge.* District PIERCE, Judge: District prisoner, appellant, appeals from pro application the dismissal of his se by corpus writ of habeas the District Court (Hon. District New York for the Eastern Neaher, Judge). Appellant Edward R. degree convicted of murder the second Court, Kings jury Supreme after a conviction affirmed County. The Division, Department, Appellate Second 13, 1976,and opinion, on December without * Pierce, York, Judge sitting des- W. District of New Lawrence District Southern Honorable ignation. the United States District Court for the *2 post-arrest of statements appeal to the York Court should been

leave to 24, January 36, Appeals suppressed (p. II). However, denied on Point appellant’s examination brief in the corpus proceeding begun The habeas Appellate Division reveals that federal con- 5, appellant’s pro 1977. The se April on claims, such, stitutional as were raised by the application was dismissed District in that court.2 Such were expressly claims hearing by a Memorandum without Court 14, September present 1978. In his raised for the Order dated first time in the petition, appellant that the trial contended petition corpus. a writ of habeas judge engaged during in biased conduct Metz, 1052, In Johnson v. 609 F.2d at 1054 trial, thereby depriving appel- course of (2d 1979), Court, this presented Cir. with lant of a fair trial. He also contended that circumstances, similar reaffirmed the stan- the trial court erred when it denied his here, applicable dard a standard enunciated suppress post-arrest motion to certain state- by prior respect decisions with to the issue by appellant ments since he asserts he made of exhaustion of state in remedies actions properly had informed of not been his con- involving variety Johnson, of claims. In rights prior being interroga- stitutional appellant had asserted claim in the ted. appellate state judge, courts that the trial we petitioner Because find that has not by prejudicial conduct and constant inter- exhausted state remedies available to ference, denied appellant had fair and him, petition- not reach the merits of do impartial not, Appellant trial. had how- er’s The claim. decision of court below ever, expressly asserted regarding a claim is affirmed. his rights. federal constitutional presented The threshold issue here As by Judge stated therein Gurfein: requirement whether exhaustion of question “The in fair trial relation to remedies available in state court set 28, Code, judge forth in Title the overall conduct of trial United States Sec has 2254(b), by appellant. tion has this been met past been stated in terms of either Connor, 270, See Picard 404 U.S. power state law or the supervisory 509, (1971).1 92 S.Ct. 30 L.Ed.2d 438 particular court. In the absence of a violation, claim of a federal constitutional dispute appellant, There is no we must consider whether New York counsel, presented assistance of appellate opportunity courts had a fair courts, alia, state appellate inter his claim consider judge the conduct of the trial in judge deprived the conduct of the trial this 16, I, violating him fair case as (p. rights of a trial Point Brief fundamental Defendant-Appellant, Division, guaranteed Appellate by the federal Constitution.” Department) Second and his claim Id.3 that his question stitutionally interrogation,” of exhaustion remedies was conducted was the presented by counsel explicit the state’s and was by appellant concerning reference However, by not addressed the District Court. rights forty-one his constitutional in the entire may the issue this considered Court even page submission. This brief reference does not if it was not raised in the District Court or suffice to show that the state courts were party appeal. Fogg, in either Wilson v. presented [urged] upon “with the same claim 91, (2d 1978); F.2d 94 & n.5 United Cir. States Connor, the federal supra, Courts.” Picard v. Vincent, ex rel. Johnson v. 507 F.2d p. 404 U.S. p. (emphasis 92 S.Ct. at (2d denied, cert. 420 U.S. added). S.Ct. 43 L.Ed.2d We find that spite of the failure of the state to raise the 470.15(3) 3. Under section of the New York below, require issue this Court should strict Law, Criminal Procedure the state intermediate compliance with the exhaustion doctrine in this appellate may modify judg- court reverse or comity particularly case in the interest ment as a matter of discretion in the interest of where the conduct of a court state trial justice. appellate The state courts have re- questioned. has been versed criminal convictions because of unwar- passing appellant’s

2. A ranted intrusions of during comment the trial brief sub- Appellate justice mitted to the the interest of Division to the “uncon- a matter of with an Johnson, synonymous that considera- assertion of constitu In this Court found process basis rights. tions . as a tional due In of “federalism Mees, state rem- of exhaustion of 47 N.Y.2d for the doctrine 420 N.Y.S.2d cogent 283, 284 in cases such particularly (1979), edies 394 N.E.2d the Court of [are] conduct state trial as this where the Appeals “appellant’s stated claim that Id. at The conclu- *3 judge is at issue.” Judge the intrusion of the Trial deprived that of sion the basis of the Court right of his “[o]n him constitutional to a fair trial therefore, by precedent, the construction subject is to analysis.” harmless error meaning the of the exhaus- this circuit of People Crimmins, 230, v. And in 36 N.Y.2d us to that the tion doctrine leads conclude 213, 326 (1975), 367 N.Y.S.2d N.E.2d 787 given have New York courts never been court asserted: opportunity really to consider the serious of given discussion the effect to be [0]ur pervasive question whether the conduct of constitutional error of the Fifth [violation judge in case of the trial this should not overlook a paral Amendment] a violation of federal constitu- amounted to lel, overlapping and in some instances Id. process.” at 1055. tional due doctrine, also of proportion, constitutional in- with the same issue in the Presented right namely, the fair trial. Not similarly hold that the feder- stant only the individual defendant but issues, by al raised as such constitutional large at is public entitled to assurance court, time appellant for the first in federal there shall be full observance and presented the state courts have not been right enforcement of the cardinal of a and, therefore, appel- review appellate defendant to a fair The appellate trial. to meet the exhaustion re- lant has failed overriding have an responsibility, courts 2254(b), 28, Title Unit- quirement of section lightly never to be eschewed or to be laid Therefore, at we decline ed States Code.4 aside, give that assurance. petition- of this to address merits time right self-standing to a fair trial is application. er’s proof guilt, however[,] overwhelm Affirmed. ing, permitted negate can never be right. OAKES, Judge (dissenting): Circuit 791, Id. at 326 367 N.Y. N.E.2d respect I must dissent. With all (emphasis added). S.2d at 218-19 If the “cardinal,” right to a fair trial were not i. me this defendant’s claim It seems to e., proportion,” “oí constitutional stated “fair right to a had been denied his Crimmins, “self-standing,” it could not be to a equivalent treated as trial” must be rendering analysis inapplica- harmless error process due claim he had been denied “original under- ble. Certainly, of law. process of law” embodies

standing” of “due the New The fact that at least some of right to a embody nothing if it does view a claim as a York courts “fair trial” See, Origins of the g., Levy, e. L. fair trial. by one is numerous supported constitutional (discussing (1968) 164-70 Fifth Amendment DeJesus, 42 People recent cases. See v. 1590). John Udall the trial of 519, 196, 198-99, 523, N.Y.2d 399 N.Y.S.2d 752, (“Neither (1977) 369 N.E.2d 755 York courts importantly, More may . themselves, adversary system of what once nature of our regardless case, now or should nor the constitutional command to afford a treat been treat, fair trial as Judge of denial of fair trial inhibit a Trial from assum- claim Harrison, People appellate supervisory g., v. 51 A.D.2d E. ercises court’s

discretion. (2d 1976); 589, Dep’t People powers. 777 N.Y.S.2d 378 909, Richburg, 225 A.D.2d 366 N.Y.S.2d 47 v. relating discretionary 1975). For a discussion of unresolved issues (2d Dep’t Such determina- 440.10(2)(c) by to section the New York Crimi- apparently not dictated constitu- tions are Law, Metz, supra considerations, nal Procedure see v. Johnson ex- but rather constitute tional at 1055-1056. 24

ing Savings an active role in the resolution of the Central City York, Bank v. of New 9, .”) (1939); (citations omitted); truth . . 280 N.Y. 19 N.E.2d 659 Peo Budd, Bennett, (1889), 117 N.Y. 22 N.E. ple 65 A.D.2d aff’d, 143 U.S. 12 S.Ct. L.Ed. (1978) (“The guarantee N.Y.S.2d flouted, a fair trial cannot be thus and even overwhelming proof guilt cannot obviate I do not see how a claim that a defendant right process the fundamental to due deprived has been of a fair exces- .”) (citation omitted); People v. differs, sive intrusion of the trial Brown, 715, 717, 62 A.D.2d 405 N.Y.S.2d example, from a claim that he has been (1978) (“In opinion our record denied his rights constitutional when found replete prosecutor not so error guilty proof beyond absence of and the court reasonable doubt. as to have denied defendant a Such claim rests on the process due Winship, clause. In re Constitution.”). fair trial under the U.S. *4 358, 364, 1068, 90 S.Ct. 25 L.Ed.2d 368 sure, many To be there are older New (1970). right does the So to a fair trial. may York cases that be characterized as Dempsey, 86, Moore v. 261 U.S. 43 S.Ct. viewing right the fair trial growing as one (1923). 67 L.Ed. 543 See, out of g., the common law. e. People basis, On this it seems to me that appel- Dovico, 457, 458, v. 6 A.D.2d 179 N.Y.S.2d lant’s claim in the state courts that “[t]he (1958) (“From very 380 beginning judge’s trial flagrantly biased conduct to- of the common law it has recognized been counsel, wards defense open and his at- that a fair trial is one of the most basic and tempt verdict, to assure guilty deprived a judicial fundamental essentials proc- of our appellant (Brief of a fair trial” for Defend- ess and no strong matter how the evidence ant-Appellant 33, People Gayle, v. pointing guilt to judgment of conviction A.D.2d (1976) (sum- N.Y.S.2d must be reversed if the trial was not a fair mary affirmance)) is a claim of denial of one.”). right viewed, But even if the is so it process. due partiality Bias or is no mere rule housekeeping imposed by goes right to process. the core of due Shar- courts; appellate it is a common law rule so key Thurston, supra; v. Frischling fundamental as to be embodied in the due Schrank, 462, 463, 24 A.D.2d 260 N.Y.S.2d process clauses of both the state and federal me, nothing To it adds to a V, XIV; constitutions. U.S.Const. amends. claim of denial of a fair trial to include the Const, 6; I, N.Y. art. see Sharkey v. § words “under the Due Process Clause” or Thurston, 123, 126, N.Y. 196 N.E. “under the Constitution” or the like. The (1935) (“It is a fundamental rule of our appellant’s brief Appellate Division law, common embodied in the Constitutions spoke mockery of “a right to a fair Nation, of our State and person that no impartial and hearing.” Brief for Defend- may adjudged guilty punished upon ant-Appellant, supra, at 35. It is difficult charge wrongful conduct without a majority’s understand the argument that hearing. . may man be both [N]o the court did not view this statement as accuser judge.”).1 And it is worth not- raising process due issues. The uncontra- ing that the state and federal constitutions dicted appellant’s affidavit of attorney are in respect identical in content. See part: states in Metz, (2d 1. Johnson v. People Harrison, 609 F.2d 1052 at 1054 51 A.D.2d 378 N.Y. a case that held the (1976), exhaustion doc- Appeals S.2d 777 the Court of seems to applicable trine in a federal habeas case involv- clearly me to have “constitutionalized” the fair ing trial, a claim of denial 'of fair views right these in New I York. do not feel bound holdings solely “common law” cases as based the Johnson not because I think it “supervisory power.” on “state law” or Id. misperceives law, New York but also because it correct, Whether or not that view is and con- many argu handed down months after the some, cededly may support it still have ment in this case. I should also note that courts, though they New York lower do not point evidently I make here was point directly, g., discuss the e. v. Rob- presented to the Johnson court. inson, (1976); 53 A.D.2d 385 N.Y.S.2d 374 Gayle’s 150-proof five drinks Jamaican rum be- of Mr. Following denial 6. Division, party, I fore he arrived at the and had bad Appellate appeal by the appeal eyesight eye. in one other permission on his behalf sought Appeals. (Foster) eyewitness Court of claimed that did not the New York State Judge anyone, including before his hearing was held discuss the case with An oral Jones, cousin, couple D. of weeks before Fuchsberg. until Jacob trial, half years more than two and a Again, the issue of evidence killing. Gayle’s run- Tr. 401-03. after hear- alt said Gayle’s guilt was raised Mr. apprehension ex- ning upon possibly atten- judge’s I ing, again, called illegal that he was an plicable by the fact the errors involved tion to the fact that detectives were apprehending alien and the question was one were so serious that plain testimony The detective’s clothes. due Gayle’s whether Mr. fundamental unsolicited, unwritten, practically hear- right impartial to a fair and process confession, with no in- coupled unwitnessed the evi- ing abridged, had been motive, suspect on its quiry as to seems to that guilt was irrelevant of his dence totally credibility. turned on face. The trial issue. might piece The one of evidence Schnapp, Elliott November Affidavit of eyewitnesses’ version of substantiated ex- appellant I in short that believe demonstrating powder killing remedies. hausted his state clothing decedent Nune’s burns —the —was Thus, of his go I to the merits would produced though would as- even one *5 it meritorious. I would find claim. And In kept was as evidence. such sume it case, I will Because of the outcome great impor- judge’s the role assumed of the complete a discussion not include as tance. majority in a expected as would merits reading transcript A of the indicates close necessary. capsulation is opinion, but a judge court trial was all over that the state case rested ón prosecution’s entire provide a Examples like a tent. this case eyewit- testimony of two following: the the conduct, although improper his sense of nesses, flight apprehended, when Gayle’s depth reveals of his reading full the confession to Detec- supposed his oral and following, He did the none of involvement. immediately appre- after the tive Bankhead reversible, but all of perhaps which is alone stand, took the The defendant hension. to be exces- operated which in combination alibi, produced no witnesses. gave an but sively intrusive: (Jones) eyewitnesses the denied in One judge constantly in 1. The interfered that he was even the his first statement 159-61, 171-73, 312-14, trial, g., place, the e. Tr. the homicide took admit- party where 331-35, that he had had 397.2 on cross-examination ted guys typical example: put following exchange Dennis the THE WITNESS: Two on 2. The gave and the taxi man back seat taxi May I MR. have [defense counsel]: GALIAN hospital. to take him to the instructions question last and answer read? the did taxi man do? THE COURT: What the No, not read. The witness THE COURT: panicking, he He was THE WITNESS: gun, the man who fired said the man with way to turn. didn’t know which deceased, Dennis, who was the shots after stop car? THE COURT: Did street, ground, went into the he held on the out Yes, stopped in the car was THE WITNESS: forward, simulating right action of his arm road, had —Dennis the middle of the and he gun There his the man who went out. was seat, somebody and he said on the back He the taxicab. hand. hailed him, things had like that. to come with Yes, THE WITNESS: sir. Did he sit in THE What did he do? COURT: stopped the THE COURT: He cab. come, police or the car and wait for Yes, THE WITNESS: sir. leave? hap- You to know what THE COURT: want moved the car I think he THE WITNESS: pened then. feet, stopped there. about ten Yes, MR. GALIAN: sir. ahead. THE COURT: Go happened then? THE COURT: What Tr. 331-32. 681, 691-92, 710, 936, something Tr. or judge rough on defense 2. The police permitted de- objected disputed or a rul- trivial as whether the counsel when he bathroom, 631-32, 154-55, 156, 210-13, go Tr. 682-83. ing, e.g., Tr. fendant 640, 671, 686-87, registered being easy judge while on the The also his disbelief circumstances, prosecutor making the defendant look ridiculous: “Did comparable e. g., 233, 278, 311, go swimming day [January you Tr. 341.3 While he dis- on 2] played displeasure Beverly?” over the amount of with Tr. 647. cross-examination time taken defense judge joined prosecution 5. The with the judge counsel. Tr. himself took gang up on several occasions to on the asking an inordinate amount of time in E.g., (Prosecutor: “Judge, Tr. defense. g., questions, e. Tr. 331-32. Thursday put can we recess until judge leapt my patience?”); (The 3. The end to Tr. 725 Court: aid witnesses, example, jury, “Members of the defendant asks g., see also Tr. Jones, adjournment.”); examination of witness David e. another 270-71, 280-81, 287-88, 290, 291, 294, 348, 369, 399, 671, 703-05, 707, Tr. 296, 301, 307, 312, 333, 334, 335, 359-60, prosecutor’s inappropriate After 361-62,4 doing interfering unduly in so comment in reference to defense counsel cross-examination. (Prosecutor: neigh, “If he wants to zoos,”

4. The took over cross-examina- Tr. himself con- tion of denigration by referring the defendant and tried to make him such tributed to “animals,” Examples look like a liar. include the issue Rastafarians as Tr. 686. The of defendant’s “sister’s” when in judge inconsistently by telling address later acted defense counsel he could Gayle may fact interrupt pros- have misunderstood the judge’s questions summation, mix-up, because of a date chiding ecutor’s Tr. then following excerpts required 3. The THE demonstrate this dis- COURT: Just a moment. That parity Compare you glasses— treatment. to wear Objection MR. GALIAN MR. GALIAN: At this time. [defense counsel]: form, your Leading. Why you to ing. Honor. That’s all lead- THE COURT: do have to wear *6 glasses now? Counselor, you THE COURT: must rise to my THE WITNESS: I have a defect with left your you feet when address the Court. eye. sorry, your MR. GALIAN: I’m Honor. you THE COURT: Were able to see that THE COURT: This is not real estate clos- night your glasses? without ing. just wearing glass- THE WITNESS: I started sorry, your MR. I’m GALIAN: Honor. es two months. objection THE COURT: The is overruled. glass- THE COURT: You never used to wear objection Just an make without comment. I es? will rule on that. No, THE WITNESS: sir. Go ahead. your eyesight right? THE COURT: Was all Tr. with Yes, THE WITNESS: sir. Now, one-thirty morning, in the the Q. people drinking evening? had been all THE COURT: You were a welder? [prosecutor]: MR. ROSENBAUM That’s ob- Yes, THE WITNESS: sir. jected testimony. to. There is no such glasses THE COURT: You didn’t have then Yes, you starting argu- THE COURT: are in 1972? purely argumentative, ment there. This is No, THE WITNESS: sir. language your ques- that’s tion, from obvious the your THE That didn’t interfere COURT: with up point objection to the where the work, did it? made. No, THE WITNESS: sir. Go ahead. welding Tr. THE COURT: You were able to do a job? following exchange impor- 4. The dealt with the Yes, THE WITNESS: sir. eyesight: tant issue of the witness’s requires good eyesight, THE COURT: That Now, you would tell us the nature of Q. does it not? your eye requires you condition that to wear THE WITNESS: It does. glasses at this time? Tr. (No response.) A. you nearsighted? Are Q.

27 prosecution aid of a so, during the witness doing Tr. a turnaround him for impact cross-examination. The of these make counsel serve to defense only could jury was such the instances could jury. look in front foolish judge only believe that favored the entire does not reading of the record A witness and his version of government’s why the explanation as to produce any the facts. this manner. judge comported himself in judge’s damaging Even more was the not a Max perhaps Defense counsel persistent questioning of defense witness- was, cross-examination, but Steuer on es, particularly the defendant Nazzaro exceptions, and possible two with one or trial judge himself. The often assumed polite and restrained when those provoked, role, prosecutor’s interposing ques- Furthermore, judge. a hostile faced with clearly which tions indicated disbelief in discrepancies bring a number of he did out testimony. defendant’s He cer or in the case. holes again, treat Id. at 308. And tainly not “fuel” trial court’s did him, in Unit ment as did defense counsel guilt Where the defendant’s or innocence Boatner, (2d Cir.), 478 737 ed States v. F.2d exclusively jury’s rests almost on the denied, 414 94 38 cert. U.S. S.Ct. evaluation of the witnesses’ demeanor (1973). 96 L.Ed.2d credibility, ignore ques cannot tioning judge undertaken which so partial as the trial judge was not as This signals judge’s clearly jury the. “Chicago judge Seven” United interjec partisanship. judge’s Even if a (7th Dellinger, 472 340 Cir. States v. F.2d partisan are not tions motivated denied, 1972), cert. S.Ct. U.S. “he must purpose, permit . But he was on 35 L.Ed.2d appearance even the of such an interfer par judge the trial in United States Curcio, ence.” United States v. F.2d Nazzaro, (2nd 472 F.2d Cir. (2nd 1960). vig Cir. The court’s panel said: where the examining participation orous Nazzaro dispute parties among There is no Reynolds, when especially contrasted judge participated extensively that the with the relative freedom from hostile all examination of witnesses. Several interruption prosecution’s witness instances, however, such occurred es, conveying jury could not avoid clarify testi- necessary “where [it was] did not believe Nazzaro jury assist in under- mony and the other witnesses. defense evidence,” standing the United States True, (footnote omitted). Id. at 310 DeSisto, 1961). (2nd 289 F.2d Foster, Jones and well as witnesses might proper But “while it for a Gayle, spoke pa- Jamaican defendant in a issues, clarify witnesses *7 question to tois and were sometimes difficult hear. such intervention should become the part judge’s inter- But a small D’Anna, v. F.2d rule.” United States purposes. ference was for clarification (2nd 1971). It is clear Cir. frequent from the record that on occa- fair A fair trial is a trial. The defendant during the trial of this sions as perhaps badly here was as off judge’s questions unmistakably rehabili- Haynes in ex rel. defendant United States McKendrick, (2nd credi- tated a witness whose v. F.2d 152 by defense bility expressions had been undermined to whom there were overt as times, ques- At other court’s But he still not have a fair counsel. racism. did appeared designed inject doubt or trial. I consider conduct of state tions credibility of a de- here at least as intrusive uncertainty as to Ap- Court of condemned the New York fense witness. peals Mees, supra. in (footnote omitted). Again, Id. short, occasions In I would reverse the district

There were numerous similar corpus, quickly grant in came the writ of habeas which the all too court Michaels, days Legal of our David Seth Aid Soci- sixty retrial within subject to a Unit, Defender New ety, mandate. Federal Services appellant. City, York Kris, Mary Atty., Ellen Asst. U. S. Fiske, Jr., (Robert Atty., City York B. U. S. Y., Goldstein, for the D. N. Howard W. S. Atty., City, New York of coun- Asst. U. S. sel), appellee. America, Appellee,

UNITED STATES KAUFMAN, Judge, Before Chief SMITH, Judges. Circuit OAKES RODRIGUEZ, Appellants. Jose 79-1260. No. Docket PER CURIAM: Appeals, United States Court of Appellant was tried on an indictment Second Circuit. charging unlawfully, wilfully that he “did knowingly package embezzle a which Argued Nov. possession, had come into his and was in- Decided Jan. conveyed by tended to be mail” in violation defense, Appellant’s of U.S.C. 1709. § credibility addition to an attack on the witnesses, Government’s even under the state of facts testified to witnesses, “decoy” parcel Government not, question might either was or at least been, conveyed by not have “intended to be mail,” and that a critical element of the lacking. Government’s case was therefore appellant requested, On basis but was denied, acquittal. a directed verdict of For appellant objected the same reason to that portion charge which instructed the jury package sealed, addressed, that “a test bearing genuine postage deposited an official area United States Post being processed Office in which mail was package conveyed by to be intended mail purposes for the of this statute.” Appellant assigned carrier was a letter the Knickerbocker Station at 130 East Broadway in Manhattan. At the time of assigned his arrest he was to deliver mail on *8 Route but he was also familiar with Route a commercial area that includes exchange the jewelry district of Canal and Eldridge Streets in lower Manhattan. Ac- cording testimony of the Govern- witnesses, Inspector ment’s Postal Leslie prepared decoy package Lauziere on De- package con- cember 5 or