UNITED STATES ex rel. Samuel ROSS, Petitioner-Appellant, v. J. Edwin LaVALLEE, Warden of Clinton State Prison, Dannemora, New York, Respondent-Appellee.
No. 1014, Docket 71-1346
United States Court of Appeals, Second Circuit
Decided Sept. 3, 1971
Argued June 25, 1971.
448 F.2d 552
“The section is limited in scope and it does not constitute a re-examination of present law relating to contracts to which the section does not specifically apply.” S.Rep.1622, 83rd Cong., 2d Sess., at 115 (1954).
As far as the statute is concеrned, the cancellation of a contract right other than the cancellation of a lease or a distributorship agreement continues to be governed by the law as it existed before the enactment of § 1241.
We do not agree that Ferrer overruled the General Artists and Starr Bros. cases. Ferrer is to be distinguished on the ground that it involved the release of motion picture production rights which could have been sold to any third person.1 A release of a right to restoration is entirely different and is not a “sale” under § 453(b) (1) (B).
Affirmed.
Hays, Circuit Judge, filed concurring opinion.
Robert L. King, Debevoise, Plimpton, Lyons & Gates, New York City, for petitioner-appellant.
Benton J. Levy, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.
Before SMITH and HAYS, Circuit Judges, and POLLACK, District Judge.*
J. JOSEPH SMITH, Circuit Judge:
Petitioner appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Northern District of New York, James T. Foley, Chief Judge. We find no error and affirm the judgment.
Petitioner was convicted in the State Supreme Court, New York County, in 1964 after a joint trial of selling narcotic drugs. He was sentenced to a term оf imprisonment of from five to eight years. The judgment of conviction was affirmed without opinion by the Appellate Division,1 and permission to appeal to the New York Court of Apрeals was denied by Judge Breitel.
The New York Court of Appeals did establish a means whereby Bruton claims in cases in which trial was held before the Bruton decision may be presented in state courts. In People v. Pohl, 23 N.Y.2d 290, 296 N.Y.S.2d 352, 244 N.E.2d 47 (1968), the Court of Appeals indicated that coram nobis was the appropriate means for the presentation of such a challenge. Because of the Pohl decision, the State urges this court to dismiss petitiоner‘s appeal for failure to exhaust his state remedies by applying for coram nobis relief.
It is clear, however, that the exhaustion requirement for federal habeas corpus applies only to direct state appeals, and not to collateral post-conviction relief.2 Petitioner has presented
Petitioner was tried jointly with his brother, Horace Ross. At trial, Pоlice Detective Watson, who arrested both of them, along with a third individual, Charles Jenkins, testified that when he questioned Horace about his selling of narcotic drugs, Horace repliеd, “Gee whiz, we‘re just trying to make a few bucks.” Petitioner contends that in the context in which it was made, this admission incriminates him, even though it did not refer to him by name. In the District Court Judge Foley concludеd that “the testimony of the detective to which petitioner now objects is not the type of ‘powerfully incriminating’ statements to which the Supreme Court referred in Bruton.” As to whether this statement was incriminating, we must disagree. Petitioner was arrested with his brother. Given this context, there can be no doubt that his brother‘s reference to “we” included petitioner. In this sense, the admission was damaging to petitioner‘s cause. Though petitioner was not mentioned by name, we have little doubt that he was incriminated by his brother‘s admission.
The Supreme Court has clearly indicated, however, that improper admissions of a co-defendant in contravention of Bruton may constitute harmless error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). An error will be considered harmless if there exists no reasonable doubt that absent commission оf the error the evidence against the defendant was so overwhelming that the jury would have convicted in any case. Chapman v. California, 386 U.S. 18, 25, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Here, we must agree with Judge Foley that there existed such overwhelming independent evidence against petitioner that any Bruton error was harmless.
The main witness for the prosecution at trial was female Detective Robbie Williams. She testified that she had actеd as an undercover police agent, posing as a narcotics addict to make purchases of narcotics and gain information. On August 21, 1963, she and another female went tо Mike‘s Bar on 7th Avenue and 143rd Street in New York City. They went by taxicab to the vicinity of the Blue Moon Bar, 123rd Street and Park Avenue, where they were joined by three other women. Petitioner and his brothеr, petitioner driving, drove up to the women, got out of the car, and Horace Brown asked Detective Williams “how many” she wanted, and she replied one, and gave him $73. The women wеre told to go to another location, where the two brothers drove up two hours later. Both defendants spoke to the women, and Horace directed them to go to still another location. At this third location Detective Williams was directed to packets of heroin. Detective Watson, who had been observing the contacts between the wоmen and the defendants, testified that he saw petitioner in a conversation with two other girls in the group and observed “hand motions be-
Petitioner also argues that he was denied his Sixth Amendment right of effective representation because he and his brother were jointly represented by the same attorney. It is contended that because of the difference in the degree of proof against the two defendants, a conflict of interest arose which prevented prоper representation. It appears true that the State‘s evidence against petitioner‘s brother was more voluminous than that against petitioner himself. This fact alonе, however, is insufficient to establish a conflict of interest of the magnitude necessary under the law of this circuit to support a claim of inadequate representation.4 The еxistence of any conflict of interest because of the disparity in evidence is purely speculative.
The judgment of the District Court denying and dismissing the petition is affirmed.
HAYS, Circuit Judge (concurring):
The evidencе against Samuel Ross, aside from the statement the admissibility of which is contested, does not seem to me to be “so overwhelming that * * * violation of Bruton was harmless beyond a reasonable doubt * * *” Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969). I agree with the district court judge that Horаce Ross‘s statement was not “powerfully incriminating” under the Bruton rule and my concurrence rests on that ground.