Hawkins appeals from a judgment of the United States District Court for the Eastern District of New York (Wexler, J.), denying his petition for a writ of habeas corpus. Reversed and remanded.
Before: KAUFMAN, OAKES, and MESKILL, Circuit Judges.
To some, silence is golden; to others, it is "insolubly ambiguous." Doyle v. Ohio, 426 U.S. 610, 617, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Today, we are called upon to examine the concept of silence in its manifold legal permutations. We shall attempt to glean meaning from a state court's silent affirmance of a criminal conviction, evaluate the effect of an express assurance to the accused that he has a right to remain silent, and decipher what message-if any-is conveyed when a criminal defendant chooses to exercise his right of silence.
This appeal arises from Judge Wexler's denial of Joseph Hawkins's petition for a writ of habeas corpus, stemming from his 1975 conviction by the New York State Supreme Court (Harold Hyman, Justice) on charges of first degree robbery.
In deciding this appeal, we are mindful that Congress has expressly authorized the litigation of constitutional claims and defenses in a federal district court after a state has vindicated its interests through trial of the substantive criminal offense in the state courts. See 28 U.S.C. § 2254 (1982). By affording criminal defendants post-trial access to the federal courts, Congress has reinforced the notion that the federal judiciary is vested with the primary responsibility for preserving federal rights and privileges.
Against these powerful concerns must be balanced a state's interest in ensuring allegiance to its procedural requirements. A willingness by federal courts to permit review of state convictions where a criminal defendant failed to comply with a state's procedures would detract from the perception of state criminal trial as a decisive event. Federal courts must steadfastly refrain from slighting the state forum, denying state judges as meaningful role in matters of constitutional adjudication, or underestimating the importance of finality in criminal trials.
Situated at the fulcrum of these conceptual bases militating both for and against the availability of federal habeas corpus is the doctrine of procedural waiver. Broadly speaking, this doctrine may best be understood as an attempt by the federal judiciary to strike a balance between the constitutional rights of a criminal defendant and a state's interest in the integrity of its judicial procedural regime.
Because the factual setting of this case bears so prominently on our ultimate determination, we shall proceed carefully to set forth the relevant facts.
The origins of this action may be traced to the evening of February 24, 1975. At approximately 8:00 p.m., Olga and Farkas Citron were robbed at knife-point by two assailants, as they attempted to enter their apartment in Queens. More significant than the grisly particulars of the crime was the fact that neither Olga nor Farkas Citron*fn1 was able to identify Hawkins as one of the perpetrators, although the robbery lasted between two and three minutes and the Citrons enjoyed a clear view of the robbers in an illuminated hallway. At trial, Mr. Citron testified that though it was "possible," he was not "sure" Hawkins was one of the robbers. Mrs. Citron evinced more certainty, testifying that "I'm quite sure that he was not one [of the robbers]." Indeed, the shorter assailant (allegedly Hawkins) was described by Mr. and Mrs. Citron as a "very young man, about twenty [years old], between five feet one inch and five feet five inches tall, with no facial scars." In sharp contrast to this verbal portrait, Hawkins was thirty-eight years old, five feet seven inches tall, with a six-inch scar across his forehead, as well as a smaller scar on his cheek.
The only inculpatory testimony presented at Hawkin's trial-held before a judge sitting without a jury-was that offered by Steven Jones, a security guard for Smart Security. Jones testified that on the evening of the crime, while stationed in the center of the apartment complex that housed the Citrons, he was approached by a young boy who apprised him that a robbery was in progress. Jones alleged that he rushed to the Citron's building and, standing approximately 25 feet from its entrance, witnessed the robbery take place. After three or four minutes, the robbers fled into the darkness. Notwithstanding Jones's pursuit, the two assailants disappeared among the maze of apartment buildings.*fn2 Jones alleged, however, that prior to their escape, he managed to catch a glimpse of the shorter robber's face, as it was illuminated by a street lamp. Jones testified that he recognized this man as someone with whom he had spoken briefly one month earlier. Eleven days after the robbery, Jones again saw the man he identified as the short assailant and summoned a police officer, who placed Hawkins under arrest.*fn3
Because the testimony offered by Jones provided the sole link between Hawkins and the crime, the defense counsel devoted considerable effort to puncturing holes in Jones's story. As the trial unfurled, the contradictions, inconsistencies and impossibilities inherent in Jones's testimony mounted. First, the crime testified to by Jones bore little resemblance to that witnessed firsthand by the Citrons. The dissimilarities were striking not only in terms of the particulars surrounding the crime, but also relating to the precise location of the robbery and the weapons used in the course of the crime.
More importantly, the documentary evidence assembled and explained by John Stratford, a Legal Aid Society investigator, demonstrated that Jones could not possibly have observed the robbery from where he claimed he stood. Indeed, the crime would have been within Jones's optical range only if his vision were capable of penetrating a set of solid double doors, turning left, ascending a staircase, and again turning left. When confronted with this physical impossibility, Jones at first equivocated and, ultimately, changed much of his story.
Hawkins, in his won behalf, testified that he worked as a carpenter at a nearby at a housing development. After work on the day of the robbery, Hawkins claimed to have had a few drinks with the head carpenter, and then visited the home of a friend, Robin Bates. At approximately 8:30 p.m., Hawkins left Bates's apartment to "go out and pick up some food." On the way back, Hawkins alleges he saw two men he knew from the neighborhood (Edward St. John and Fred Brown) running from the general direction of the Citron's building. As they approached, the shorter man cautioned Hawkins, "You better get away. We just robbed somebody." At that point, with security officer Jones in hot pursuit, Hawkins fled and returned to Bates apartment. Although Hawkins's alibi was largely corroborated by the testimony presented at trial by Robin Bates, certain inconsistencies between the two versions did emerge.*fn4
At the close of the evidence, but before the defense had been afforded the opportunity to sum up, the state trial judge hastened to pronounce Hawkins guilty. Upon being apprised of his error, the judge apologized for "jumping the gun" and invited defense counsel to sum up. The court repeatedly interrupted defense counsel's summation (relevant portions of which are reprinted in the margin)*fn5 to voice concern that Hawkins had neither protested his innocence to the police, the District Attorney's Office or the Grand Jury, nor come forth and announced the identities of the actual culprits. After the prosecution summed up, the judge found Hawkins guilty on all four counts of first degree robbery, see N.Y. Penal Law § 160.15 (McKinney 1975). On November 19, 1975, Hawkins was sentenced to an indeterminate prison term of five to fifteen years.
Hawkins appealed his conviction to the Appellate Division of the Supreme Court of New York State, Second Department. He claimed his guilt had not been proved beyond a reasonable doubt and that the state trial court had violated his fifth and fourteenth amendment right to remain silent by having drawn impermissible inferences from his post-arrest silence, citing Doyle v. Ohio, supra. The Queens County District Attorney seemingly conceded that the trial judge's actions amounted to a constitutional violation, but argued that such error was harmless. On May 22, 1978, the Appellate Division reduced Hawkins's sentence to two and one-half to seven and one-half years, but upheld the conviction without commenting on Hawkins's claims. People v. Hawkins, 63 A.D.2d 719, 405 N.Y.S.2d 128 (2d Dep't 1978). On July 5, 1978, permission to appeal to the New York Court of Appeals was denied. 45 N.Y.2d 780, 409 N.Y.S.2d 1037, 381 N.E.2d 172 (1978) (Wachtler, J.).
More than three years later, on July 16, 1981, Hawkins filed a petitioner for habeas corpus in the United States District Court for the Eastern District of New York, reasserting the two claims he had raised before the Appellate Division.*fn6 Judge Platt denied the petition on March 31, 1982. He ruled that Hawkins had not exhausted his reasonable doubt claim because he did not "call attention to or frame his argument in terms of a federal constitutional claim." On May 4, 1983, Judge Oakes, writing for this Court, concluded that Hawkins, by asserting that "the prosecution's case fell quite short of that required to prove appellant's guilty beyond a reasonable doubt," had fairly presented the reasonable doubt claim and alerted the state court of is constitutional nature. Hawkins v. West, 706 F.2d 437, 439 (2d Cir. 1983). Consequently the exhaustion of state remedies requirement was satisfied, see Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S. Ct. 723, 79 L. Ed. 2d 184 (1983), and this Court reversed and remanded the case to the district court for its consideration on the merits.
On remand, Judge Wexler-to whom the case had been transferred-denied Hawkins's petition for a writ of habeas corpus. He ruled that Hawkins had waived his post-arrest silence claim by failing to object to the trial court's questions during summation. Moreover, Judge Wexler, citing Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982), cert. denied, 459 U.S. 849, 74 L. Ed. 2d 97, 103 S. Ct. 109 (1983), presumed that the Appellate Division rested its affirmance on a procedural default. The district judge also concluded that it could not be said "that a reasonable trier of facts could not have found ...