Appeal from a memorandum and order of the United States District Court for the Southern District of New York, Hon. Richard Owen, Judge, which dismissed on the merits a petition for a writ of habeas corpus. Affirmed without prejudice for failure to exhaust state remedies.
Lumbard, Mulligan and Timbers, Circuit Judges.
The appellant, Joseph Wilson, was convicted of burglary and robbery after a jury trial in Supreme Court, New York County, before the Hon. Morris Spector, in December 1972. He was given an indeterminate sentence with concurrent terms of five to fifteen years for burglary and two and one third to seven years for robbery. Appellant is presently incarcerated in the Green Haven Correctional Facility where he is serving these sentences. Wilson's conviction was affirmed without opinion by the Appellate Division, 51 A.D. 2d 1105 (1st Dep't 1976) and the New York Court of Appeals denied leave to appeal, 39 N.Y.2d 842 (1976). Wilson subsequently petitioned the United States District Court for the Southern District of New York on December 21, 1976 for a writ of habeas corpus, claiming that the trial court's decision to proceed to trial in his absence while he was in custody in lieu of bail, violated his rights as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The petition was dismissed by Judge Richard Owen on the merits in a memorandum and order dated June 17, 1977. This appeal followed.
Our disposition of this case makes it unnecessary to repeat the facts in any detail or to make any comment upon the merits of the decision below. It is sufficient to note that Wilson moved in the state criminal action to relieve his trial attorney at a point when his counsel was ready to go to trial; new counsel was appointed and when the case was moved for trial, Wilson became disruptive in the courtroom. When the case was finally scheduled for trial on December 7, 1972, Wilson allegedly refused to leave his cell to come to the courtroom. The trial judge directed that the trial proceed in his absence. The District Court found that Wilson had knowingly and voluntarily waived his right to be present during his trial by his deliberate decision not to appear despite continued orders and invitations by the court both before and during the proceedings. We find it unnecessary to rule on the merits here because it is elementary under Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), that a state prisoner who petitions for a writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust his state remedies.*fn1 Where a petitioner has raised his claim in the state court solely as a violation of a state statute and not on the basis of an invasion of his federal constitutional rights, dismissal by the federal court is mandated.
As the Court stated in Picard v. Connor, supra :
The [exhaustion] rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.
Id. at 276 (emphasis supplied).
This court has consistently applied the rule of Picard v. Connor, supra, and required the petitioner to present " the state courts with the same claim he urges upon the federal courts." United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2d Cir.), cert. denied, 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972) (emphasis in original); see United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 994 (2d Cir. 1974). See also Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976).
As Judge Meskill pointed out in Fielding v. Le Fevre, 548 F.2d 1102, 1106 (2d Cir. 1977):
This is not a formal hurdle placed in the way of meritorious claims, but an essential element of federalism in the administration of criminal justice. The state courts must be afforded an opportunity to set their own Constitutional houses in order before the power of the federal courts is invoked. See Note, Developments in the Law -- Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1094 (1970). That policy is especially strong when as here, the conduct of a state judge is sharply and directly called into question. United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124-25 (2d Cir.), cert. denied, 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972).
Aside from the deference owing to the state court,*fn2 especially in an instance where, as here, the propriety of the actions of the state trial judge is in issue, we are not unmindful that habeas petitions are often brought by state prisoners years after the events alleged to create constitutional violations have transpired. Inadequate records and dimmed memories thwart and frustrate an appropriate determination. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 263, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (Powell, J., concurring). It is clearly in the interest of the prisoner and the public that the constitutional arguments initially be raised in timely fashion through the state trial and appellate process.
Here, of course, the attack is upon the New York State Supreme Court trial judge, Hon. Morris Spector, who allegedly violated petitioner's constitutional rights by holding Wilson's trial in absentia when the defendant had not been advised that his trial had commenced. The threshold inquiry to be made is whether Wilson raised the issue in the state court. An examination of Wilson's brief in the Appellate Division, First Department, submitted on his behalf by assigned counsel, reveals that Point I of that brief, which is devoted to the question of Wilson's absence from the trial, is entirely devoted to the New York State Criminal Procedure Law provision set forth in the margin.*fn3 There is no mention of any invasion of Wilson's constitutional rights in the entire text of Point I. The court was urged to reverse the conviction on the grounds that Wilson's conduct was not disruptive enough to warrant his removal from the court and that he did not waive his right to attend the proceedings. Therefore, petitioner claimed, his rights under the state statute had been violated. In rebuttal, the state urged that the defendant was not excluded from the trial because of his disruptive behavior but rather was invited to be present and failed to appear. No constitutional issue was raised by the state in answering Wilson's argument on this point.
In view of the admitted failure of the appellant to raise the constitutional argument explicitly, the fact that the cases cited on his behalf in the brief also addressed the issue in constitutional terms hardly amounts to providing the state courts with the "fair opportunity" to weigh the constitutional claim required by Picard v. Connor, supra. In both Picard and United States ex rel. Nelson v. Zelker, supra, there were vague constitutional arguments raised in the state court but they were found insufficient fairly to focus the attention of the state court on an issue later squarely presented to the federal district court. Here, petitioner's argument to the state court was devoted entirely to the state statute. It could have been dismissed by a construction of the statutory language without ever reaching the constitutional issue to which the court's attention was never directed. The Wilson brief in the state court did, however, explicitly present to the state court in its second and final point the argument (since abandoned) that Wilson's pretrial show-up identification was so suggestive as to amount to a denial of due process. This was the sole ...