Appeal by the State of New York from the grant conditionally of a writ of habeas corpus under 28 U.S.C. § 2254. The District Court for the Eastern District of New York (Edward R. Neaher, Judge ) granted the writ on the primary ground that the appellees had received an unfair trial in the state court in violation of the due process clause of the Fourteenth Amendment because of the conduct of the trial judge. The Court of Appeals held that there had not been exhaustion of remedies in the state court since the claimed constitutional issue had not been raised. Reversed with direction to dismiss the writ.
Before Gurfein, Van Graafeiland and Newman,*fn* Circuit Judges.
The State of New York appeals from the conditional grant of a writ of habeas corpus by the District Court for the Eastern District of New York (Hon. Edward R. Neaher, Judge ) ordering the release of the two appellees Johnson and Hall if they were not tried within sixty days.*fn1 Appellees were convicted jointly of criminal sale of a Dangerous Drug in the First Degree after a jury trial in Supreme Court, Kings County.*fn2 The convictions were unanimously affirmed by the Appellate Division, without opinion, on October 15, 1974, 46 A.D.2d 739, 361 N.Y.S.2d 325 (2d Dep't 1974), and leave to appeal to the New York Court of Appeals was denied on February 4, 1975. Certiorari was denied. 422 U.S. 1048, 98 S. Ct. 2666, 45 L. Ed. 2d 700. The District Court wrote a lengthy opinion in which it concluded that the excessive intervention of the trial judge into the proceedings amounted to an unconstitutional deprivation of the right to a fair trial and hence violated the due process clause of the Fourteenth Amendment.
The habeas corpus proceeding was begun on March 17, 1976. After a hearing the District Court granted the writ with a full opinion on February 5, 1979.
The State filed a notice of appeal and then filed a motion for reconsideration of the decision in the District Court. In that motion the State renewed its earlier contention that the prisoners had failed to exhaust their state remedies, as required by 28 U.S.C. § 2254(b) and (c), and that the court should therefore have refused to take jurisdiction. The District Court held that the filing of this appeal ousted it of jurisdiction to consider the exhaustion contention, but for prudential reasons stated its view, nonetheless, that there had been sufficient exhaustion of the state remedies.
Though the case is close, we have come to the conclusion that on the basis of precedent there has been no exhaustion of state remedy in the sense that the state court has never had a reasonable opportunity to consider the conduct of the trial judge as deficient on Federal constitutional grounds. Section 2254 of Title 28, U.S.Code, provides that a writ should not be granted to a person in custody pursuant to the judgment of a state court unless it appears that the applicant has exhausted the remedies available in the courts of that state or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. The essence of the exhaustion rule was stated by the Supreme Court in Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971), as follows:
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.
The argument is made in this case that because the claim that the judge had denied a fair trial was actually raised in the state court, this is sufficient to satisfy the requirement that remedies shall have been exhausted.
We have examined the briefs in the Appellate Division and have come to the conclusion that the federal constitutional claim now asserted was not raised in that court. The argument was made there that the defendants were deprived of a fair and impartial trial by the prejudicial conduct and constant interference of the trial court. The primary line of cases cited in support were state cases in which prejudicial conduct by trial judges resulted in reversal by the appellate courts of the state as a matter of state law or under their supervisory power. While it is true that some federal cases were also cited, these were all cases dealing with the supervisory power of the appropriate federal court, cited without reference to constitutional provisions. The thrust of the argument can be seen in defendant Johnson's conclusion at the end of his brief in the Appellate Division, in which he urged that "a fair trial is one of the most basic and fundamental essentials of judicial process and No matter how strong the evidence pointing to guilt may be, a judgment of conviction must be reversed if the trial was not fair" (italics in original). (App. 213.) Significantly, six cases were cited in support of this conclusionary statement, all of them state cases, as follows: People v. Mleczko, 298 N.Y. 153, 81 N.E.2d 65 (1948); People v. Dovico, 6 App. Div.2d 457, 179 N.Y.S.2d 379 (1958); People v. Herman, 255 App.Div. 314, 7 N.Y.S.2d 560 (1938); People v. DeMartino, 252 App.Div. 476, 299 N.Y.S. 781 (1937); People v. Man, 5 Misc.2d 852, 165 N.Y.S.2d 783 (1956); and People v. Schildhaus, 17 Misc.2d 825, 186 N.Y.S.2d 68 (1959).
Defendants couched their argument concerning fair trial in constitutional terms for the first time on their petition for certiorari in the United States Supreme Court.
The question of fair trial in relation to the overall conduct of the trial judge has in the past been stated in terms of either state law or the supervisory power of the particular court. In the absence of a claim of a federal Constitutional violation, we must consider whether the New York appellate courts had a fair opportunity to consider the conduct of the trial judge in this case as violating fundamental rights guaranteed by the Federal Constitution.
In this circuit we have tried to apply Picard v. Connor, supra, in terms of a recognition of the importance of according to the state courts co-equal jurisdiction and competence to decide constitutional questions. Accordingly, we have tended to construe rather narrowly the issue posed in Picard v. Connor whether the state court had been given the opportunity to decide the same "ultimate question for disposition." Since 1971 we have had occasion to consider the difficult question of where to draw the line. Shortly after Picard v. Connor, we held in United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2d Cir.), Cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 497 (1972), that although "a general due process argument was made in the state court" under Picard v. Connor, the broad due process argument made under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), in the federal court had not been brought to the attention of the state court. Accordingly, we said:
His attack is upon the conduct of the District Attorney and of the State Supreme Court Justice who participated in that trial. It would indeed be violative of § 2254(b) as construed in Picard v. Connor to deny the state court the opportunity to review the propriety of the actions of its court and prosecutor, under ...