Motion and cross-motion for further relief after decision of this Court reversing grant of habeas corpus relief and ordering reinstatement of state court judgment of conviction. 669 F.2d 872. Prior opinion clarified and cause remanded with directions to dismiss the habeas corpus petition. Judge Mansfield dissents.
Feinberg, Chief Judge, Mansfield and Newman, Circuit Judges. Mansfield, Circuit Judge (Dissenting).
Our January 22, 1982, decision in Cruz v. Alexander, 669 F.2d 872 (2d Cir.), cert. denied, 459 U.S. 844, 103 S. Ct. 99, 74 L. Ed. 2d 89 (1982), has provoked uncertainty in the minds of the parties as to the nature of proceedings contemplated after we reversed a habeas corpus judgment of the District Court for the Southern District of New York 509 F. Supp. 640, (Robert W. Sweet, Judge) that had vacated a state court's judgment of conviction. The uncertainty has been brought to our attention by motions filed by both sides. We have concluded that our prior opinion should be clarified and augmented to resolve at this time the issue of the adequacy and conclusiveness of state court fact-finding, an issue we had previously left unresolved. With that issue resolved, we now direct that the habeas corpus petition be dismissed.
The contentions now before us require examination of the unfortunately ptotracted history of this litigation as it moved through the state and federal courts. Cruz was convicted in 1971 in the New York Supreme Court of possession of explosive substances. Prior to trial he claimed that he had been the victim of illegal wiretapping. That claim was rejected as "premature." During the trial, Cruz renewed his claim, relying on two incidents that occurred at the trial. First, during cross-examination of a defense witness the prosecutor asked a question concerning "The Anarchist's Cookbook." Cruz alleges that this book had not been mentioned in any testimony, but had been mentioned by his counsel in a telephone conversation with a defense expert two days earlier. Second, during summation the prosecutor referred to the testimony of Sister Anne Marie, whom he identified as a defense character witness. Cruz claimed that no such person had testified or been referred to at trial, but that her name had been mentioned as a possible character witness in a telephone conversation the previous day between his counsel and a third party. The state trial judge did not call upon the prosecution to affirm or deny wiretapping; however, the prosecutor stated that he had "nothing . . . derived from any kind of surveillance." The trial court implicitly rejected Cruz ' claim.
After trial Cruz appealed his conviction and also renewed his claim of wiretapping in a motion to vacate his conviction. The State responded to the motion with an affidavit of the prosecutor denying that he had engaged in wiretapping or that any questions asked of any witnesses had been based on information obtained from wiretapping. The trial court denied the motion, relying on N.Y. Crim. Proc. Law § 440.10(2)(b) (McKinney 1971), which requires denial of a motion to vacate when an appeal is pending and "sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal." Leave to appeal the denial of the motion to vacate was denied. On the direct appeal the conviction was thereafter affirmed by the Appellate Division without opinion, People v. Cruz, 41 A.D.2d 1027, 343 N.Y.S.2d 786 (1st Dep't 1973), and by the Court of Appeals with opinion, 34 N.Y.2d 362, 314 N.E.2d 39, 357 N.Y.S.2d 709, modified, 35 N.Y.2d 708, 320 N.E.2d 274, 361 N.Y.S.2d 641 (1974). The Court of Appeals explicitly considered the wiretapping claim and rejected it. The Court assessed Cruz's claim, based on the two trial episodes, as "little more than speculative," id. at 369, 314 N.E.2d at 43, 357 N.Y.S.2d at 714, and found the claim sufficiently answered by the prosecutor's denial of wiretapping and by the trial court's "perusal of the prosecutor's file for traces of eavesdropping evidence, which revealed none," id. at 368, 34 N.E.2d at 43, 357 N.Y.S.2d at 713.
Cruz then filed a habeas corpus petition in the District Court for the Southern District of New York. Judge Sweet ruled that Cruz ' conviction should be vacated. Cruz v. Alexander, 477 F. Supp. 516 (S.D.N.Y. 1979). Judge Sweet first considered whether Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976), precluding habeas corpus review of state court Fourth Amendment rulings, barred consideration of Cruz ' claims based on the federal wiretapping statute, 18 U.S.C. § 2515 (1976), and the Sixth Amendment. He concluded that Stone was inapplicable, but ruled, alternatively, that even if Stone applied, Cruz ' claims should be considered because the state courts "failed to provide 'an opportunity for full and fair litigation '" of his claims. 477 F. Supp. at 522 (quoting Stone v. Powell, supra, 428 U.S. at 495 n.37). Judge Sweet based this conclusion on the following circumstances. The state trial court, in rejecting Cruz ' motion to vacate his conviction, had "declined to consider [the wiretapping] claim . . ., assuring only that sufficient facts had been entered into the record to enable an appellate court to decide petitioner's claim." Id. at 522. In affirming Cruz ' conviction, the New York Court of Appeals had initially included in its opinion the following footnote:
Moreover, we are advised that the allegations of wiretapping of counsel were reasserted in a post judgment motion to vacate the conviction on which the People submitted an affidavit in opposition containing specific denials. The motion to vacate was denied and apparently no appeal was pursued. While we might otherwise be disposed to remand for further proceedings with respect to these allegations, in light of these developments such a course would now be purposeless.
People v. Cruz, No. 271, slip op. at 4 n.2 (N.Y. 1974), quoted in Cruz v. Alexander, supra, 477 F. Supp. at 522. Upon Cruz ' motion for reargument to the Court of Appeals, that Court amended its opinion by deleting the footnote, explaining that the deletion would "clarify the basis for [its] holding." People v. Cruz, 35 N.Y.2d 708, 708, 320 N.E.2d 274, 274, 361 N.Y.S.2d 641, 641 (1974).
In Judge Sweet's view, the New York courts had placed Cruz in a "procedural 'catch-22, '" whereby "neither the trial nor appellate courts addressed the merits of Cruz ' wiretap claim because each believed the other had done or would do so." 477 F. Supp. at 523.
Turning to the merits, Judge Sweet ruled that 18 U.S.C. § 3504 (1976 & Supp. IV 1980) imposed upon the state prosecutor an obligation to affirm or deny Cruz ' allegations of wiretapping and that the prosecutor's denial filed in the state trial court was deficient since it denied only the prosecutor's wiretapping and not that of pertinent law enforcement agencies. Accordingly, he directed the State to furnish responses from eleven federal, state, and local law enforcement agencies affirming or denying wiretapping of approximately 25 persons and locations listed by Cruz. Id. at 522-26. When the state prosecutor submitted denials from the law enforcement agencies together with his own affidavit detailing the procedures he had used in making requests of the agencies, Judge Sweet ruled that the denials were deficient because they were not in affidavit form. Because of that deficiency Judge Sweet granted Cruz ' petition and ordered his conviction vacated. 509 F. Supp. 640 (S.D.N.Y. 1980).
On the State's appeal from that ruling, we reversed. 669 F.2d 872 (2d Cir.), cert. denied, 459 U.S. 844, 103 S. Ct. 99, 74 L. Ed. 2d 89 (1982). Initially, we noted the State's renewal of its contention that Stone v. Powell, supra, precluded consideration of the merits and its disagreement with Judge Sweet's alternative ruling that the state courts had not provided opportunity for full and fair litigation of Cruz ' claim. As to these points we stated: "Since the district judge ruled on the merits of the important issue before us and committed error, we believe that we should reach the merits as well. We express no view on the preliminary issues decided by the court below." 669 F.2d at 874 n.2. Turning to the merits, we rejected Judge Sweet's premise that section 3504 applies to state court trials or to federal habeas corpus challenges to state court convictions. Id. at 875 & n.3. We also ruled that even on the assumption that federal law imposes upon prosecutors in state proceedings some obligation "akin to the § 3504 procedure" in federal prosecutions to affirm or deny allegations of wiretapping, Cruz was not entitled to relief because the State's denial, submitted to Judge Sweet, satisfied even the obligation section 3504 imposes with respect to federal prosecutions. Id. at 875-77. Since Judge Sweet had granted relief only because of his ruling that the State's denial was deficient, we reversed the grant of habeas corpus relief and ordered reinstatement of the conviction.
After our decision, Cruz first took the position in the District Court that our reversal had adjudicated only the "formal" sufficiency of the State's denial of wiretapping and permitted him to proceed with a hearing to determine the "factual" sufficiency of the denial, by which he meant whether, apart from the lack of agency affidavits, the denial was sufficiently detailed and comprehensive. On May 24, 1982, Judge Sweet correctly ruled that our decision precluded such a hearing, since we had stated our view that "the state's denial of wiretapping contains no deficiency cognizable of the federal collateral attack." Id. at 873. However, Judge Sweet suggested that the unavailability of a further inquiry as to the sufficiency of the denial did not necessarily preclude a further hearing as to whether wiretapping had occurred. To pursue this factual inquiry, Cruz then served a massive discovery request that probed deeply into the investigative files of all of the law enforcement agencies that had denied wiretapping Cruz, his associates, or his lawyers. On September 14, 1982, Judge Sweet ruled that Cruz was entitled to discovery and rejected the State's claim that our prior ruling foreclosed any further proceedings. That ruling prompted the State to move in this Court for an order directing Judge Sweet to dismiss the habeas corpus petition. Subsequently, Cruz submitted a motion requesting that we recall our mandate and rule, as Cruz had initially urged, that agency denials of wiretapping be submitted in affidavit form.
Our prior decision did not explicitly direct that Cruz ' habeas corpus petition should be dismissed, nor did it explicitly provide that the matter was remanded to the District Court for further proceedings. The lack of either direction has left the parties in dispute as to whether Judge Sweet had any authority, after issuance of our mandate, to assess the merits of Cruz ' contention that he had been the victim of illegal wiretapping. There is considerable force to the State's argument that our prior opinion, directing that the judgment of conviction be reinstated and omitting any direction for a remand for further proceedings, ended the litigation and left nothing more for the trial court to do except enter a revised judgment. See Communist Party v. Subversive Activities Control Board, 102 U.S. App. D.C. 395, 254 F.2d 314, 321 (D.C. Cir. 1958) ("Of course, if the Supreme Court reversed and directs that a certain final judgment be entered, the whole controversy is ended"). However, we are unwilling to rest decision on the inferences that might be drawn from our prior opinion. The parties' motions have prompted us to give the matter renewed consideration, and we now conclude that one of the threshold issues left open in our prior opinion should ...