Williаm DAYE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF NEW YORK and Eugene Le Fevre, Superintendent, Greenhaven Correctional Facility, Respondents-Appellees.
No. 906, Docket 80-2292
United States Court of Appeals, Second Circuit
Decided Dec. 9, 1982
Argued to the En Banc Court April 13, 1982
694 F.2d 186
KEARSE, Circuit Judge
4. Provide economic relief from fuels lower in sulfur content than local environmental conditions require.
The notice also published addresses where copies of the proposed revision could be inspected and from which they could be obtained.
The description of the revision certainly does not make crystal-clear that the Energy Trade Program is designed to permit increased sulfur in fuel and consequently increased SO2 emissions. Nevertheless, the notice did state that one purpose of the program was to give “economic relief from fuels lower in sulfur content than local environmental conditions require.” This notice could be read either to permit burning of higher-sulfur fuel, as the Program in fact provided, or to authorize state subsidies for plants continuing to burn fuels unnecessarily low in sulfur. An alert reader would probably have understood that the latter interpretation is much less realistic than the former, as indeed several groups did, including the Fund. Moreover, as we have emphasized above, separate SIP revision procedures, including public notices and hearings, are required before any higher-sulfur fuel is burned in Connecticut. Thus, technically no changes have occurred as a result of the adoption of the Program. Nevertheless, we are troubled by the thought that there may have been citizens and groups who, had they not been misled by the notice, would have urged Connecticut to keep its air cleaner than required, and our decision to uphold the Agency‘s approval should not be read to condone the ambiguous notice or the Agency‘s acceptance of it. But the Fund, which clearly understood what was at stake and participated fully in the state as well as the federal proсeedings, does not allege that it was prejudiced, nor did it object to the notice at the state level, when any defect could easily have been cured. Moreover, this revision has been through extensive administrative and judicial proceedings, and all the issues have been thoroughly explored. At this late date, the wastefulness of overturning the approval outweighs the lack of clarity of the notice, especially since it has not prejudiced the parties before this court. Cf. Appalachian Power Co. v. EPA, 579 F.2d 846, 851-54 (4th Cir.1978); Mision Industrial, Inc. v. EPA, 547 F.2d 123, 126-28 (1st Cir.1976).
Conclusion
The petition for review of the Agency‘s final rule approving Connecticut‘s Energy Trade Program is denied.
APPENDIX
Glossary
| BTU | British Thermal Unit |
| NAAQS | National Ambient Air Quality Standard |
| PSD | Prevention of Significant Deterioration |
| SIP | State Implementation Plan |
| SO2 | Sulfur Dioxide |
| TSP | Total Suspended Particulates |
Meredith Anne Feinman, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., New York County, Robert M. Pitler, Mark Dwyer, Asst. Dist. Attys., New York City, on the brief), for respondents-appellees.
Before FEINBERG, Chief Judge, and KAUFMAN, OAKES, VAN GRAAFEILAND, MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, and WINTER, Circuit Judges.*
KEARSE, Circuit Judge:
The issue presented for our en banc consideration in this appeal concerns the standard for determining whether state rеmedies have been exhausted so as to permit federal habeas corpus review of a state court conviction. Appellant William Daye, a New York state prisoner, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, Milton Pollack, Judge, contending principally that, in his state trial for murder and robbery, he had been denied a fair trial in violation of his federal constitutional rights. The district court ruled that Daye had exhausted his state remedies, but dismissed the petition for lack of merit. Daye appealed the dismissal of his fair trial claim,1 and a divided panel of this Court, without reaching the merits, affirmed on the ground that Daye had failed to exhaust his state remedies. 663 F.2d 1155 (2d Cir. 1981). On en banc reconsideration, we conclude that Daye had exhausted his state remedies. We therefore vacate the decision of the panel and return the matter to the panel for consideration of the merits.
I. BACKGROUND
Daye was convicted in New York Supreme Court in June 1976 of felony murdеr, intentional murder, and two counts of first degree robbery. The events leading to his conviction are set forth in detail in the opinions of the panel, 663 F.2d 1155, familiarity with which is assumed. In brief, the state presented evidence at trial that on March 19, 1974, Daye robbed patrons and employees of a restaurant, shot and mortally wounded the restaurant‘s cook, attempted unsuccessfully to shoot others in the restaurant, and fled. Daye was followed by one of his victims to a building two blocks away, and was soon apprehended there by police as he was trying to climb down a drainpipe. Daye‘s defense was that he had been a victim of the robbery rather than its perpetrator, and that he had fled the restaurant because he had a prior arrest record and was afraid he would be accused of the robbery.
Daye appealed his conviction to the Appellate Division of the Supreme Court, complaining principally that the trial judge had “assumed an obviously hostile and prosecutorial stance towards the defendant,”
* Senior Judge J. Edward Lumbard, who was a member of the panel that originally heard this appeal, elected not to participate in this en banc review, see Federal Court Improvement Act of 1982,
Daye then commenced the present proceeding by filing a petition for a writ of habeas corpus in the district court.2 Again relying on his contentions that the trial judge, by his interrogation of witnesses and his manner of addressing defense counsel, had exhibited partisanship, Daye argued that he had been denied his right to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The state opposed the petition not only on its merits, but also on the ground that Daye had not presented his claim to the state courts in constitutional terms and thus had failed to exhaust his state remedies. Judge Pollack noted that the state court appeal had been prosecuted in terms of the denial of a “fair trial,” and he concluded, citing Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979), that even without explicit citation of the Constitution or federal cases, Dаye‘s presentation had been sufficient to alert the state courts that Daye claimed deprivation of his right to a fair and impartial trial under the Sixth and Fourteenth Amendments. Reaching the merits, Judge Pollack dismissed Daye‘s petition because he concluded that the trial judge‘s conduct had not deprived Daye of a fair trial. This appeal followed.
A. Decision of the Panel
On Daye‘s appeal the state pursued its contention that Daye had failed to exhaust his state court remedies, and a majority of the panel concluded that Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979), compelled a ruling that there had been no exhaustion. Writing for the majority, Judge Newman stated as follows:
This Court has frequently ruled that the exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts. Wilson v. Fogg, 571 F.2d 91 (2d Cir.1978); Cameron v. Fastoff, 543 F.2d 971 (2d Cir.1976); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2d Cir. 1974). We have especially emphasized the importance of identifying a claim as a federal constitutional claim when challenging the conduct of a state court trial judge. Fielding v. LeFevre, 548 F.2d 1102 (2d Cir.1977); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972).
Just two yeаrs ago we applied this strict approach to exhaustion to a habeas corpus petition indistinguishable from Daye‘s. Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979). Like Daye, Johnson sought habeas corpus relief because of the excessive and prejudicial intervention of the state court trial judge, and, like Daye, his state court briefs, which made no express mention of the Sixth or Fourteenth Amendments, referred to the denial of a fair and impartial trial and characterized a fair trial as a fundamental element of the judicial process. Though the District Court in Johnson had concluded that the
663 F.2d at 1156-57; see id. at 1158 (Metzner, J., concurring). Thus, although the majority in the present case saw [little] reason to believe that the articulation of facts (here, excessive and prejudicial court questioning) and consequence (here, denial of a fair and impartial trial) are inadequate to afford state courts, fully aware of their constitutional responsibilities, a fair opportunity to decide whether a conviction accords with constitutional requirements, id. at 1157 (Newman, J.); see id. at 1158 (Metzner, J., concurring), it felt constrained on the basis of Johnson to rule that there had been no exhaustion because Daye‘s state argument had not explicitly referred to federal constitutional standards. Accordingly, the panel affirmed the dismissal of Daye‘s petition, without prejudice to his commencing a new habeas proceeding after the exhaustion of state court remedies.
Judge Lumbard, in dissent, concluded that the exhaustion requirement had been satisfied because Daye‘s state appellate brief had “repeatedly argued that the trial judge‘s questioning ‘deprived the defendant of his right to a fair trial,‘” and “[t]he New York courts have recognized that this right rests on constitutional and not merely state law grounds ....” Id. at 1160. Judge Lumbard found Johnson v. Metz distinguishable because Daye, unlike the petitioners in Johnson, had relied on New York authorities, e.g., People v. DeJesus, supra, that themselves relied on United States Supreme Court cases in support of the principle that there is a fundamental, constitutional right to a fair trial untainted by judicial partiality.
In light of the importance of having a consistent and workable standard by which the courts of the Circuit may judge whether or not state court remedies have been exhausted, a majority of the active judges of the Court voted for en banc rehearing of the panel‘s decision, limited to the question of exhaustion. We directed the parties to file additional briefs on this issue and invited them to address the question whether Johnson v. Metz should be overruled.
II. DISCUSSION
A. Exhaustion in General
The federal habeas corpus statute,
The exhaustion requirement springs primarily from considerations of comity. The writ of habeas corpus is designed to provide an efficacious remedy for imprisonment in violation of federal law. See, e.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The exhaustion doctrine recognizes that state courts, no less than federal courts, are bound to safeguard the federal rights of state criminal defendants. See Irvin v. Dowd, supra, 359 U.S. at 404, 79 S.Ct. 825 at 831; Ex parte Royall, supra, 117 U.S. at 251, 6 S.Ct. at 740. The requirement that federal courts not exercise habeas review of a state conviction unless the state courts have had an opportunity to consider and correct any violation of federal law expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam); Picard v. Connor, supra, 404 U.S. at 275, 92 S.Ct. at 512; Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950); Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1093-94 (1970). In addition to “minimiz[ing] friction between our federal and state systems of justice,” Duckworth v. Serrano, supra, 454 U.S. at 3, 102 S.Ct. at 19, adherence to the еxhaustion requirement has the salutary practical effects of enhancing the familiarity of state courts with federal doctrines, Rose v. Lundy, supra, 102 S.Ct. at 1203; Braden v. 30th Judicial Circuit Court, supra, 410 U.S. at 490-91, 93 S.Ct. at 1127-28, and of increasing the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious, Rose v. Lundy, supra, 102 S.Ct. at 1203-04.
The exhaustion requirement is not satisfied unless the federal claim has been “fairly presented” to the state courts. Wilwording v. Swenson, supra; see also Brown v. Allen, 344 U.S. 443, 447-50, 73 S.Ct. 397, 402-404, 97 L.Ed. 469 (1953). In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court. See, e.g., Picard v. Connor, supra, 404 U.S. at 276-77, 92 S.Ct. at 512-13; Twitty v. Smith, supra, 614 F.2d at 331. Specifically, he must have set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim. See, e.g., Picard v. Connor, supra, 404 U.S. at 276, 92 S.Ct. at 512;
Likewise, the petitioner must have placed bеfore the state court essentially the same legal doctrine he asserts in his federal petition. See, e.g., Picard v. Connor, supra; Callahan v. LeFevre, 605 F.2d 70, 72 (2d Cir. 1979); Wilson v. Fogg, 571 F.2d 91, 92-93 (2d Cir.1978); Fielding v. LeFevre, 548 F.2d 1102, 1107 (2d Cir.1977). The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court.4
B. Presentation of Legal Basis
The difficult question in many cases, including the present one, is whether the legal doctrines asserted in state and federal courts are substantially the same. Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts. A defendant may, however, fairly present the substance of a federal constitutional claim to the state court without citing “book and verse on the federal constitution.” Picard v. Connor, supra, 404 U.S. at 278, 92 S.Ct. at 513 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)). The requirement that the state court have been given a reasonable opportunity to pass on the federal habeas claim is satisfied if the legal basis of thе claim made in state court was the “substantial equivalent” of that of the habeas claim. Picard v. Connor, supra, 404 U.S. at 278, 92 S.Ct. at 513; see also Ulster County Court v. Allen, 442 U.S. 140, 147-48 n.5, 99 S.Ct. 2213, 2217-20 n.5, 60 L.Ed.2d 777 (1979); Callahan v. LeFevre, supra, 605 F.2d at 73-74; Fielding v. LeFevre, supra, 548 F.2d at 1107; United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 993-94 (2d Cir.1974). This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim‘s federal nature.
The courts may be alerted to the constitutional nature of a claim in a number of ways. Even absent a reference to “book and verse” of the Constitution the state court will have notice of the constitutional nature of a claim if, for example, the defendant relies on federal constitutional precedents.5 See, e.g., United States ex rel. Gibbs v. Zelker, supra, 496 F.2d at 994 (intimating that a citation to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), would have alerted state court to the constitutional thrust of defendant‘s claim). Alternatively, the state court will be alerted to the constitutional nature of a claim if the defendant has claimed the deprivation of a particular right specifically protected by the Constitution. In Twitty v. Smith, supra, for example, the petitioner had claimed a violation of his right to “effective assistance of counsel.” 614 F.2d at 332. We held this adequate to alert the state court to consider the Sixth Amendment‘s guaranty of the accused‘s right “to have the Assistance of Counsel for his defence.”
The more specific the description of the right in question—e.g., assistance of counsel, double jeopardy, self-incrimination—the more easily alerted a court will be to consider a constitutional constraint couched in similarly specific terms.6 The greatest difficulty arises when in the state court the petitioner has described his claim in very broad terms, such as denial of a “fair trial.” The concept of fairness embraces many concrete notions, ranging from such fundamental matters as the right of the defendant to know the charges against him, to such lesser interests as his right to have each count of the indictment charge him with no more than one criminal violation, United States v. Gibson, 310 F.2d 79, 80 n.1 (2d Cir.1962);
The general principle governing assessment of whether a fair trial claim is of constitutional dimension is that where the claim rests on a factual matrix that is “well within the mainstream of due process adjudication,” Johnson v. Metz, supra, 609 F.2d at 1057 (Newman, J., concurring); see also id. at 1056 n.5 (opinion of the Court), the state courts must be considered to have been fairly alerted to its constitutional nature. If, on the other hand, the claim is based on a fact pattern not theretofore commonly thought to involve constitutional constraints, there is usually little reason to believe the courts were alerted to its supposed constitutional nature.
In addition, however, even if a particular matter is not treated generally as having constitutional dimension, if the courts of the state in question have themselves previously treated that fact pattern as appropriate for constitutional analysis, it would be unreasonable to suppose that they are nоt alert to constitutional considerations. Thus we consider that a defendant who cites state precedent that employs pertinent constitutional analysis has adequately put the state courts on notice of the constitutional thrust of his claim.7
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. In all such circumstances the federal habeas court should assume that the state courts, which are obliged, “‘equally with the courts of the Union, . . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States,‘” Irvin v. Dowd, supra, 359 U.S. at 404, 79 S.Ct. at 831 (quoting Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1884)), have been alerted to consider, and have considered, the constitutional claim. To eschew that assumption is surely to disserve the interests of comity and the respect due the diligent jurists on the state bench.8
Nor do we read the Johnson majority as having rejected the general proposition discussed in Judge Newman‘s concurring opinion, 609 F.2d at 1057, and which we accept here, that a state court is alerted to the constitutional nature of a claim if its fact pattern brings it within the mainstream of due process litigation. Rather, the majority seemed uncertain that the Johnson petitioners’ claim actually fell within that category. See id. at 1056 n.5. It is with Johnson‘s assessment of the applicability of the “mainstream” criterion that we have difficulty. See part C infra.
C. Daye‘s Presentation
In the present case, we conclude that Daye exhausted his state remedies under two of the criteria articulated above. First, his Appellate Division brief relied on two state cases in which New York‘s highest court had analyzed similar contentions in constitutional terms. Second, Daye‘s repeated challenge to the trial judge‘s alleged partiality or open display of partiality served to place his claim within the ambit of a long line of cases establishing a defendant‘s constitutional right to a trial before an unbiased judge.
1. Constitutional Treatment by the State Courts
The pertinent state cases relied on by Daye in his state appeal were People v. DeJesus, supra, 42 N.Y.2d 519, 399 N.Y.S.2d 196, 369 N.E.2d 752, and People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975). Daye cited DeJesus for the proposition that “the Bench must be scrupulously free from and above even the appearance or taint of partiality.” (Daye‘s brief to Appellate Division at 8.) In DeJesus, the New York Court of Appeals described the issue before it—whether the excessive intervention of the trial judge deprived the defendant of a fair trial—in clearly constitutional terms, quoting and citing federal constitutional cases:
“It is ‘the law of the land’ that no man‘s life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal” (Matter of Oliver, 333 U.S. 257, 278 [, 68 S.Ct. 499, 510, 92 L.Ed. 682]). Such a right constitutes the most fundamental of all freedoms (Estes v. Texas, 381 U.S. 532, 540 [85 S.Ct. 1628, 1631, 14
L.Ed.2d 543]). The underlying issue here is whether defendant . . . was deprived of such a trial.
42 N.Y.2d at 520, 399 N.Y.S.2d 196, 369 N.E.2d 752. In concluding that the intervention of the trial judge had denied the defendant “‘a fair and impartial trial before an unbiased court and an unprejudiced jury,‘” id. at 523, 399 N.Y.S.2d 196, 369 N.E.2d 752 (quoting People v. McLaughlin, 150 N.Y. 365, 375, 44 N.E. 1017 (1896)), the court adverted not only to state cases but as well to Sheppard v. Maxwell, 384 U.S. 333, 350-51, 86 S.Ct. 1507, 1515-16, 16 L.Ed.2d 600 (1966), and Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965), cases affirming the right, guaranteed by the Due Process Clause of the federal Constitution, to a fair trial.
Daye quoted People v. Crimmins for the proposition that his right to a fair trial was so fundamental that its denial precluded invocation of any sort of “harmless error” analysis. In Crimmins, the New York Court of Appeals introduced the portion of its harmless error discussion that was quoted by Daye with the following observation:
[O]ur discussion of the effect to be given constitutional error should not overlook a parallel, and in some instances an overlapping doctrine, also of constitutional proportion, namely, the right to a fair trial.
36 N.Y.2d at 237-38, 367 N.Y.S.2d 213, 326 N.E.2d 787.
The discussions in Crimmins and De Jesus, therefore, show that the New York courts view a defendant‘s right to a fair trial as one of constitutional dimension, and view a claim of excessive and biased judicial intervention in the trial as implicating that right to a fair trial. We conclude that Daye‘s citations of those two cases in the context of his factual assertions were sufficient to give the state courts notice that he asserted a constitutional claim.
We note in passing that Crimmins and De Jesus (as well as People v. Mees, 47 N.Y.2d 997, 420 N.Y.S.2d 214, 394 N.E.2d 283 (1979), which further confirms the constitutional thrust of Crimmins and De Jesus) were decided after the defendants’ state appeal in Johnson v. Metz. Obviously these New York cases were not cited in the Johnson state appeals. Further, although both Crimmins and De Jesus had been decided before Johnson was argued to our Court and Mees was decided several months before the Johnson decision was rendered, they apparently were not called to our attention. The Johnson panel stated
We have been cited to no case, nor have we found any, in which the intervention of a trial judge in the conduct of trial has been found so prejudicial as to amount to a violation of constitutional due process.
2. The Mainstream of Due Process Adjudication
In addition, we conclude that Daye satisfied the exhaustion requirement because the contention that the trial judge‘s evident partiality and his assumption of a hostile and prosecutorial stance deprived Daye of a fair trial was sufficient to alert the state court that a federal due process clаim was being asserted. Under the Due Process Clause there is a well developed right, established in a long line of cases, to a trial before an unbiased judge. The fundamental nature of this right is demonstrated by the fact that not even the appearance of bias is tolerated. “Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. . . . [J]ustice must satisfy the appearance of justice.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). This principle is reflected in a long line of cases, involving a variety of circumstances bespeaking the real or apparent bias of the trial judge. E.g., Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (1974); Ward v. Village of Monroeville, 409 U.S. 57, 59-60, 93 S.Ct. 80, 82-83, 34 L.Ed.2d 267 (1972); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 510, 92 L.Ed. 682
We regard it as immaterial that none of these cases dealt with a bias manifested through allegedly excessive and one-sided intervention in the trial. The gravamen of a claim of denial of a fair trial due to judicial bias does not depend on the source of the bias or the manner of its manifestation. If judicial bias, or the appearance of it, existed, due process was denied. We do not believe it reasonable to assume that state judges presented with a claim of manifested judicial bias would fail to recognize the implication of due process rights simply because half a century of due process cases dealt with the mere risk of bias or with actual bias manifested in other ways.
Thus, to the extent that Johnson v. Metz actually construed Johnson‘s claim as one of bias (i.e., denial of an “impartial” trial, see 609 F.2d at 1054), rather than one simply complaining of “the overall conduct of the trial judge,” id., or simply complaining of “intervention,” id. at 1056, wе disagree with its conclusion that the claim as one with constitutional thrust was “novel,” and with its decision to “giv[e] the state court the first opportunity to pass on whether or not the novel constitutional point is ‘within the mainstream of due process adjudication,‘” id. n. 5.
In the present case there can be little doubt that Daye asserted his fair trial claim in terms of the alleged bias displayed by the trial judge. Having started from the basic doctrine that the judge must “be scrupulously free from and above even the appearance or taint of partiality,” (Daye‘s brief to Appellate Division at 8), Daye proceeded to assert, inter alia, that “[t]hroughout the trial the Court set impartiality aside in favor of the prosecution,” (id.); that the court “assume[d] the role of prosecutor” and thereby “demonstrated to the jury that the Trial Judge believed the defendant to be guilty,” (id. at 14); that the trial judge demonstrated an “inability to remain ‘impartial and dispassionate and not appear as an advocate,‘” (id. at 20); and that the court “blatantly and repeatedly indicated its disbelief in the defendant‘s testimony . . . and assumed an obviously hostile and prosecutorial stance towards the defendant,” (id. at 24). We conclude that the state courts were alerted to Daye‘s complaint that he had been deprived of a trial before an unbiased judge and unprejudiced jury, and we cannot assume that those courts did not recognize the constitutional implications of such a claim.
CONCLUSION
The decision of the panel is vacated, and the appeal is remanded to the panel for consideration of the merits.
VAN GRAAFEILAND, Circuit Judge, dissenting:
“The writ has no enemies so deadly as those who sanction the abuse of it, whatever their intent.”
Jackson J., concurring in Brown v. Allen, 344 U.S. 443, 544, 73 S.Ct. 397, 429, 97 L.Ed. 469 (1953).
Federal habeas corpus jurisdiction has been described as an “untidy area” of the law, Sunal v. Large, 332 U.S. 174, 184, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982 (1947) (Frankfurter, J. dissenting), presenting “many procedural problems which are not easy of solution“, Price v. Johnston, 334 U.S. 266, 269, 68 S.Ct. 1049, 1052, 92 L.Ed. 1356 (1948). Commentators have described it as one of the “dark corners of the law“, Reitz, Federal Habeas Corpus: Postconviction Remedy For State Prisoners, 108 U.Pa.L.Rev. 461 (1960), оnly dimly lit by the “confused and unprincipled” determinations of the courts, Note, Guilt, Innocence and
The cause of much of the procedural confusion has been the requirement that State remedies be exhausted before a federal writ is granted. This requirement, now codified in
Although I am somewhat overwhelmed by my learned colleagues’ unanimity of view, I am convinced that this Court‘s еn banc decision will exacerbate the jurisdictional confusion that already exists in this area and will at the same time substantially undercut the doctrine of exhaustion of remedies. I therefore respectfully dissent.
Little purpose would be served by reciting the history of the century-old controversy surrounding the power of a single federal district judge to overrule a decision that has been concurred in by as many as thirteen State court judges. But see Wright, Handbook of the Law of Federal Courts 236-248 (3d ed.1976); Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321 (1973). Friction in this area has been both persistent and inevitable, Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770-71, 66 L.Ed.2d 722 (1981), and the task of a district judge is therefore a most “delicate” one. Darr v. Burford, 339 U.S. 200, 206-07, 70 S.Ct. 587, 591-92, 94 L.Ed. 761 (1950). Because of the “principles of federalism which underlie the American legal system“, see Mackey v. United States, 401 U.S. 667, 685, 91 S.Ct. 1160, 1176, 28 L.Ed.2d 404 (1971) (Harlan, J. concurring in part and dissenting in part), a district judge should exercise habeas corpus jurisdiction with due concern for the “mutual respect and the balanced sharing of responsibility between the state and federal courts which our trаdition and the Constitution itself so wisely contemplate“, Schneckloth v. Bustamonte, 412 U.S. 218, 265, 93 S.Ct. 2041, 2067, 36 L.Ed.2d 854 (1973) (Powell, J. concurring). I am afraid that the majority‘s instructions to our district judges will encourage deviation from that salutary practice.
The fundamental liberty secured by the Fourteenth Amendment is the right to a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). However, since no prisoner attacking his conviction will ever concede that he was fairly convicted, my colleagues state quite correctly that a claim of unfairness, standing alone, does not raise a constitutional issue. My colleagues say that our district judges must look to the factual allegations supporting the prisoner‘s claim of unfairness to determine whether they are within the “mainstream of due process adjudication.” If they are, our district judges are instructed to assume that the State courts reviewed the claim as one being made under the United States Constitution, despite the absence of any reference to that document in the prisoner‘s brief. “To eschew that assumption“, the majority say, “is surely to disserve the interests of comity аnd respect due the diligent jurist on the state bench.”
My first quarrel with the majority opinion is its facile use of the phrase “mainstream of due process adjudication“. If there is such a “mainstream“, it has meandered so often as to be almost indefinable. “The Bill of Rights . . . has become a detailed code of Criminal Procedure to which a new chapter is added every year,” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 156 (1970); and, as a result, there
My second difference with my colleagues arises from their incomplete, and therefore somewhat misleading, description of the assumption which they instruct our district judges henceforth to make. A district judge who is forced to assume that State court judges have considered a constitutional claim, must also assume that the State court judges have silently rejected it. Should the district judge grant a writ under such circumstances, he will be telling the State court judges in substance that he assumes they were smart enough to spot a constitutional question but not smart enough to answer it correctly. This, I suggest, is not comity.
We delude ourselves if we believe that New York State appellate judges are less competent than federal judges to protect the constitutional rights of criminal defendants. See Stone v. Powell, 428 U.S. 465, 493-94 n. 35, 96 S.Ct. 3037, 3052 n. 35, 49 L.Ed.2d 1067 (1976); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 509 (1963); Friendly, supra, at 135 n. 125; Desmond, Federal Habeas Corpus Review of State Court Convictions—Proposals for Reform, 9 Utah L.Rev. 18 (1964). Moreover, we demean the State appellate process and impose unnecessary burdens on our district judges if we do not strongly support the policy of federal-state comity, which underlies the doctrine of exhaustion of remedies. Webb v. Webb, 451 U.S. 493, 500-01, 101 S.Ct. 1889, 1893-94, 68 L.Ed.2d 392 (1981); Jackson v. Virginia, supra, 443 U.S. at 337, 99 S.Ct. at 2798 (Stevens, J. concurring).
The principles of comity will not be served by a policy of this Court which encourages and condones careless practice and briefing in the State courts by defense attorneys and which charges State appellate courts with having silently rejected constitutional claims that were not squarely raised by State court appellants and were neither briefed nor argued by their opponents. The better rule, and the one we are required to follow, was laid down by the Supreme Court in Webb v. Webb, supra, 451 U.S. at 501, 101 S.Ct. at 1894, where Justice White, writing for eight members of the Court, said:
At the minimum, however, there should be no doubt from the record that a claim under a federal statute or the Federal Constitution was presented in the state courts and that these courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law. (emphasis in original).
The majority opinion states that petitioner “did not mention the Constitution or cite any federal cases“, but significantly fails to
My colleagues suggest that petitioner‘s claims concerning the “appearance of bias” could be construed as a squarely presented argument that he had been deprived of federal due process. I respectfully disagree. The cases cited in the majority opinion deal with whether a judge acted improperly in participating in a trial, not with whether an otherwise qualified judge made improper rulings during the course of trial. “[T]he touchstone of due process analysis is the fairness of the trial” not “the appearance of justice.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). To constitute a denial of due process, “the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). If a trial court‘s comments result in constitutional error, it is because of the nature of the comments, not the qualifications of the judge. See United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Corbett v. Bordenkircher, 615 F.2d 722, 723-24 (6th Cir.), cert. denied, 449 U.S. 853, 101 S.Ct. 146, 66 L.Ed.2d 66 (1980).
In order to determine whether the trial judge engaged in “forensic misconduct“, an appellate court should examine the entire trial record so as to put the judge‘s words in proper perspective. Daley v. United States, 231 F.2d 123, 128 (1st Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956). To assess confidently the validity of this sort of attack upon the trial judgе, it is necessary to read the voluminous transcript from cover to cover. Id.
See also United States v. McCarthy, 473 F.2d 300, 307-08 (2d Cir.1972); United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972); United States v. Switzer, 252 F.2d 139, 144 (2d Cir.), cert. denied, 357 U.S. 922, 78 S.Ct. 1363, 2 L.Ed.2d 1366 (1958). Two federal judges have already examined the entire trial record in the instant case and have concluded that petitioner was not denied a fair trial. 663 F.2d at 1156, 1158. This hardly demonstrates that there was a compelling need for the State courts to go unrequested beyond New York‘s own rules governing judicial conduct into the area of federal due process.
In cases such as this, we would be better advised to follow the generally prevailing rule that “[w]hen a federal court is unable to determine unequivocally that an issue has been considered and ruled upon by the state courts, comity requires that the initial determination of the issue be made by the state courts.” Tyler v. Swenson, 527 F.2d 877, 880 (8th Cir.), cert. denied, 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 766 (1976). See also Brown v. Cuyler, 669 F.2d 155, 157-58 (3d Cir.1982); Echevarria v. Bell, 579 F.2d 1022, 1025 (7th Cir.1978); Durkin v. Davis, 538 F.2d 1037, 1041-42 (4th Cir. 1976); Williams v. Wainwright, 410 F.2d 144, 145 (5th Cir.1969), cert. denied, 398 U.S. 943, 90 S.Ct. 1846, 26 L.Ed.2d 281 (1970).
Addendum
During the past three years, the Supreme Court granted certiorari and reversed seventeen cases in which section 2254 writs had been granted state prisoners. Five of these reversals were based upon the petitioners’ failure to exhaust their state remedies. Mabry v. Klimas, 448 U.S. 444, 447, 100 S.Ct. 2755, 2757, 65 L.Ed.2d 897 (1980) (per curiam); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam). If there is a message in these holdings, and I believe there is, the message does not seem to be having the desired effect on the lower courts.
Anderson v. Harless, supra, reversed Harless v. Anderson, 664 F.2d 610 (6th Cir. 1981), one of the cases upon which my colleagues originally relied. However, my colleagues now dismiss the Supreme Court‘s reversal as if it were entirely unrelated to the issues now before us. I suggest that, in brushing aside the Anderson holding, this Court is repeating what it did in Phillips v. Smith, 632 F.2d 1019 (2d Cir.1980), rev‘d sub nom. Smith v. Phillips, supra, 454 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), i.e., doing what the Supreme Court has said should not be done. Id. at 1024 (Van Graafeiland, J. dissenting).
As already pointed out, it is the majority‘s position that, if a petitioner‘s state court claim rests on a factual matrix that is within the mainstream of due process adjudication, this is sufficient to alert the state court to the claim‘s constitutional nature. That is precisely the argument that the Supreme Court rejected in Anderson v. Harless, supra. Referring to the Court of Appeals’ opinion, the Anderson Court said:
The court held that respondent‘s claim had been properly exhausted in the state courts, because respondent had presented to the Michigan Court of Appeals the facts on which he based his federal claim and had argued that the malice instruction was “reversible error“.
It is not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made.
In support of this legal proposition, the Court cited Picard v. Connor, supra, 404 U.S. at 277, 92 S.Ct. at 513, where the Court, in reversing the grant of a section 2254 writ, said:
To be sure, respondent presented all the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts.
The Anderson court also cited with approval Wilks v. Israel, 627 F.2d 32 (7th Cir.), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), in which Judge Wood, writing for the Court of Appeals for the Seventh Circuit, said:
The fact that all of the facts upon which the petitioner relies were presented to the state courts is insufficient to establish exhaustion.
This Court‘s holding in Gayle v. LeFevre, 613 F.2d 21 (2d Cir.1980), was also cited with approval by the Supreme Court in Anderson. In that case, as here, petitioner‘s claim that the conduct of the trial judge had deprived him of a fair trial was fully presented to the State appellate courts. Id. at 22. Moreover, petitioner‘s Appellate Division brief had commented upon the “unconstitutionally conducted interrogation“. Id. n. 2. Citing Picard v. Connor, supra, 404 U.S. at 276, 92 S.Ct. at 512, we held, nonetheless, that petitioner had not exhausted his state claims. It seems to me that, when we turn our backs on one of our own opinions which the Supreme Court has cited with approval, the Supreme Court‘s citation of that opinion should not be ignored in favor of a quotation from a footnoted dictum.
In short, Anderson v. Harless fortifies me in my belief that this Court‘s en banc opinion disregards the Congressional intent expressed in
STATE OF NEW YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS (ALBANY, NEW YORK), and The Department of Defense, Petitioners-Cross-Respondents, v. FEDERAL LABOR RELATIONS AUTHORITY (Boston, Massachusetts), Respondent-Cross-Petitioner.
Nos. 138, 139, Dockets 82-4072, 82-4090
United States Court of Appeals, Second Circuit
Decided Dec. 10, 1982
Argued Oct. 21, 1982