On cross-appeals by the State of New York and state prisoner from judgment in the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, granting in part and denying in part petition for writ of habeas corpus; convictions on both counts held invalid for constitutional error in the charge. Remanded for issuance of the writ nisi.
Before Smith, Oakes and Van Graafeiland, Circuit Judges.
These are cross-appeals by the State of New York and petitioner Lloyd Callahan from a modified order and judgment entered in the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, which granted in part the relief sought by Callahan in his petition for a writ of habeas corpus. We conclude that Callahan may have failed to exhaust his remedies in state court as to the ground on which the District Court relied in granting partial relief, but that another claim raised and exhausted by Callahan justifies conditionally granting the writ unless retrial commences within a limited period.
Callahan seeks relief from a sentence imposed after conviction on counts of assault and attempted murder in the second degree in a trial at which the judge, apparently convinced of Callahan's guilt, instructed the jury in terms which could have left little doubt in the jurors' minds as to his view of the case and his expectation that they would have little trouble in reaching the same conclusion. The charges against Callahan arose from an incident outside a Queens tavern, during which one Andrew Cornell, with whom Callahan had been arguing, was shot in the chest and thigh. At trial in New York State Supreme Court, Queens County, the State called Cornell and two other persons who were allegedly present at the time of the incident. Each testified that Callahan had told an unidentified companion to shoot Cornell and that the companion had complied, inflicting Cornell's wounds. After the jury returned its verdict, the judge ruled that the assault conviction merged in the attempted murder conviction. He then sentenced Callahan to a maximum term of twenty-five years in prison on the latter count. Callahan appealed to the Appellate Division, which reduced the sentence to a maximum of fifteen years, but otherwise affirmed the conviction without opinion. People v. Callahan, 57 A.D.2d 631, 393 N.Y.S.2d 685 (2d Dept. 1977). A motion for leave to appeal to the New York Court of Appeals was denied. 42 N.Y.2d 1000, 398 N.Y.S.2d 1043, 368 N.E.2d 49 (1977).
Callahan filed a petition for a writ of habeas corpus in district court on February 8, 1978. The District Court, in its original memorandum and order, dated September 20, 1978, conditionally granted the writ unless retrial commenced within sixty days. On September 25, the court amended its order to provide that the writ be granted unless retrial was commenced or Callahan was resentenced on the assault count within sixty days. On October 10, upon Callahan's motion for reconsideration, the District Court vacated the previous orders, but on November 9, it issued its final memorandum and order, which reaffirmed and reinstated the previous amended order and explained the reasons for so doing. The State appealed from the District Court's judgment insofar as it granted relief, and Callahan cross-appealed insofar as the judgment denied relief from the assault conviction. We will first consider the State's appeal.
The District Court's original memorandum decision reviewed several portions of the trial judge's instructions to the jury and concluded that they "deprived petitioner of his federal due process rights and right to trial by jury by removing from the jury's consideration an element of one of the offenses . . . and effectively directing a verdict of guilty on that element of the offense of attempted murder." Although this original decision left some ambiguity as to the portion or portions of the charge that the court found to be constitutionally infirm, its final decision of November 9 focused on one element of the instructions. The court held that
by implicitly equating the statement, "Shoot him, shoot him" which statement witnesses had attributed to petitioner, with the statement, "Kill him, kill him" to which there never had been any testimony, the trial judge erroneously equated the state of mind necessary to convict petitioner for attempted murder with that required to convict him for assault.
The State argues and Callahan concedes that he did not exhaust his state remedies as to this deficiency in the charge. In fact, our examination of the record discloses that Callahan has never advanced, either in state or federal court, the argument adopted by the District Court.*fn1 Inasmuch as Callahan has not pursued an apparently available post-conviction remedy under N.Y.Crim.Proc.Law § 440.10(1)(h), See Cameron v. Fastoff, 543 F.2d 971, 977-78 (2d Cir. 1976), we decline to rely upon this alleged error to sustain the District Court's order.
We turn therefore to Callahan's appeal, in which he contends that numerous other grounds exist for granting him relief on both the assault and attempted murder counts.*fn2 Before we may consider the merits of these claims, however, Callahan must overcome the obstacles that impede his attempt to obtain habeas relief because of his state court counsel's choices of litigation "strategy."*fn3 Callahan's trial lawyer failed to raise a number of potentially valid objections to the court's instructions. His appellate counsel discovered a number of these claims,*fn4 but failed to follow through on others that had been raised at trial. And again, Callahan apparently has an available post-conviction remedy with respect to these claims. Thus, we decline to consider them.
Callahan contends, however, citing Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973), that we must assess the effect of these non-exhausted claims in determining the merits of those which have been exhausted. Cupp v. Naughten does direct us to examine the entire charge, once we have found that the exhausted claims include constitutional error, to determine whether the erroneous instruction "so infected the entire trial that the resulting conviction violates due process." 414 U.S. at 147, 94 S. Ct. at 400. But, a federal court may not, consistently with Cupp v. Naughten, look to non-exhausted claims as independent grounds for issuing the writ.
Elimination of the claims that Callahan in essence concedes that he has not exhausted leaves four points which he contends have been litigated fully in the state courts. We need not decide, however, whether all of these claims are properly before us, because one of them, standing alone, justifies the relief that Callahan seeks.
The trial judge gave the following instruction to the jury:
You have heard the testimony of the two eyewitnesses, Leckler and you heard the testimony of Janecek. They told you what they heard. They told you what they saw.
If you don't believe them, fine. This defendant is not guilty. Walk him right out of that door. But, if you believe their testimony which was given to you under oath, after they have invoked the aid of the Almighty as their Judge, and they told you what ...