Petitioner Saul K. Rosenfeld appeals from an order of the United States District Court for the Eastern District of New York (Bramwell, J.) issued march 6, 1986, dismissing his petition for a writ of habeas corpus. Affirmed.
Before: LUMBARD, OAKES, and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
When a state petitioner seeks a federal writ of habeas corpus claiming his detention violates his constitutional rights, he is entitled to have a federal court determine the merits of that federal claim independently of the determination made in state court. When, on the other hand, the federal claims were not resolved on the merits in the state courts because of the petitioner's failure to comply with state procedure, then the petitioner must demonstrate cause and actual prejudice before being entitled to federal habeas relief. We have previously crafted a rule for determining whether a state court's silent affirmance of a conviction was on the merits or on procedural grounds. That rule examines exactly what issues the People of the State urged for affirmance on appeal; its proper application is at issue here.
On this appeal by petitioner Saul K. Rosenfeld from an order of the United States District Court for the Eastern District of New York (Bramwell, J.) dated March 6, 1986, dismissing his petition for a writ of habeas corpus, we do not have a silent affirmance. Rather, because the state appellate court wrote an opinion, common sense dictates that we be guided in resolving the merits/procedure question by the grounds stated in the state court's opinion.
In 1979 petitioner allegedly stole money from a donut shop in Wappingers Falls, New York, using a .22 caliber revolver. Based on this allegation, Rosenfeld was indicted on one count of robbery in the first degree and one count of criminal possession of a weapon on the second degree. A jury acquitted him of the robbery count, but he was convicted of criminal possession of a weapon and sentenced to an indeterminate term of seven to 14 years imprisonment. The Appellate division of the New York State Supreme Court affirmed the conviction by written memorandum opinion, People v. Rosenfeld, 93 A.D.2d 872, 461 N.Y.S.2d 383 (2d Dept. 1983), and the New York Court of Appeals denied him leave to appeal. People v. Rosenfeld, 59 N.Y.2d 977 (1983). Thereafter, petitioner moved to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1983). That motion and leave to appeal were both denied.
Petitioner then filed the instant application for a writ of habeas corpus in the United States District Court for the Eastern District of New York (Bramwell, J.). Habeas relief was denied on March 6, 1986. In June 1986 the district court issued a certificate of probable cause and granted petitioner leave to appeal in forma pauperis. This appeal followed.
Petitioner claims that an erroneous jury instruction violated his Fourteenth Amendment right to due process of law. Specifically, Rosenfeld argues that the state trial court improperly failed to instruct the jury that in order to find him guilty of illegal possession of a weapon, it must find that the weapon was operable and that the ammunition was live. The government contends that petitioner's failure to object to the charge bars this challenge and, in any event, that the charge as given was proper.
New York has adopted a contemporaneous objection rule requiring that an objection to an instruction be lodged at trial. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1983 & Supp. 1987). concededly, petitioner Rosenfeld failed to object at trial to the jury charge of which he now complains. Under New York law, this procedural default bars appellate consideration of his challenge to the charge. See, e.g., People v. Evans, 106 A.D.2d 527, 532, 483 N.Y.S.2d 339 (2d Dept. 1984) (alleged error in criminal weapon possession charge not preserved for appellate review when defendant fails to object), People v. Harris, 84 A.D.2d 63, 105, 445 N.Y.S.2d 520 (2d Dept. 1981) (same), aff'd, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205 (1982), cert. denied, 460 U.S. 1047, 75 L. Ed. 2d 803, 103 S. Ct. 1448 (1983).
The procedural default doctrine also governs the availability of federal habeas relief. Hawkins v. LeFevre, 758 F.2d 866, 867-68 (2d Cir. 1985). When a state appellate court refuses to consider the merits of a petitioner's claims on account of his procedural failure to preserve his rights by objection at the time, then a federal court may not review those merits in a collateral habeas corpus proceeding, unless petitioner demonstrates both good cause for and actual prejudice resulting from his procedural noncompliance with the contemporaneous objection rule. See Engle v. Isaac, 456 U.S. 107, 129, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982); Wainwright v. Sykes, 433 U.S. 72, 86-87, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). On the other hand, if the state appellate court excuses the procedural failure and considers the merits, then a federal court must also consider the merits of petitioner's challenge when ruling on the availability of federal habeas relief. Hawkins, 758 F.2d at 874; Huffman v. Ricketts, 750 F.2d 798, 800-01 (9th Cir. 1984); Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 74 L. Ed. 2d 97, 103 S. Ct. 109 (1982).
This doctrine has necessitated the creation of guidelines for interpreting the grounds upon which the state appellate court rests its decision. We undertook that task in Martinez. There, we held that when a state appellate court affirms petitioner's conviction without opinion and the People had urged affirmance on both procedural and substantive grounds the federal habeas court will assume that the state appellate court rested its decision on petitioner's procedural failure to object. Martinez, 675 F.2d at 54; accord Tsirizotakis v. LeFevre, 736 F.2d 57, 62 (2d Cir.), cert. denied, 469 U.S. 869, 83 L. Ed. 2d 146, 105 S. Ct. 216 (1984). Conversely, if the state appellate court affirmed the conviction -- again without opinion -- but the state did not raise the procedural point, then the federal court will regard the state appellate court's decision as resting on the merits. ...