United States of America Ex Rel. Eugene Frank Irons v. Ernest L. Montanye, Superintendent, Attica Correctional Facility, 520 F.2d 646, 2d Cir. (1975)
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Scribd Government DocsUnited States of America Ex Rel. Eugene Frank Irons v. Ernest L. Montanye, Superintendent, Attica Correctional Facility, 520 F.2d 646, 2d Cir. (1975)
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Scribd Government Docs520 F.
2d 646
UNITED STATES of America ex rel. Eugene Frank IRONS,
Appellant,
v.
Ernest L. MONTANYE, Superintendent, Attica Correctional
Facility, Appellee.
No. 990, Docket 74-2676.
United States Court of Appeals,
Second Circuit.
Argued May 16, 1975.
Decided July 7, 1975.
Phylis Skloot Bamberger, New York City (William J. Gallagher, The
Legal Aid Society, Federal Defender Services Unit, New York City, of
counsel), for appellant.
Arlene Silverman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the
State of New York; Samuel A. Hirshowitz, First Asst. Atty. Gen., of
counsel), for appellee.
Before SMITH and OAKES, Circuit Judges, and JAMESON, * District
Judge.
OAKES, Circuit Judge:
This is an appeal from a denial of a writ of habeas corpus, 28 U.S.C. 2254, by
Judge Curtin of the United States District Court for the Western District of New
York. Appellant, Eugene Frank Irons, currently confined to the Attica
Correctional Facility, was convicted on April 6, 1966, after a jury trial in the
Onondaga County Court of third degree burglary and first degree larceny from
a jewelry store. He was sentenced to a term of 10 to 20 years. He petitions for a
writ on the basis that the evidence against him was obtained as the result of an
unconstitutional search.
Irons was apprehended at the Syracuse bus terminal at 12:25 a. m. on July 26,
1965. The police were alerted that Irons might try to leave town by bus. The
officers had a search warrant dated July 16, 1965, stating that there was
probable cause to believe that appellant had in his possession a gun taken from
the jewelry store which had been burglarized on both July 16 and 25.1 The
officers opened the two suitcases appellant was carrying and found one to
contain jewelry, but no gun. Appellant was arrested and later that evening
admitted having twice burglarized the jewelry store and having sold the gun. A
preliminary hearing was held on December 29, 1965, on the issue whether
Irons' confession was voluntary. Following a finding in the State's favor, a trial
was held and appellant convicted. Irons appealed, claiming that the trial court
erred in its finding of voluntariness and in its charge. The judgment was
affirmed by the Appellate Division, Fourth Department, without opinion, on
May 9, 1968. Permission to appeal was denied by the New York Court of
Appeals on November 13, 1968.
3
Appellant filed pro se a writ of habeas corpus on January 16, 1969, in the
United States District Court for the Western District of New York before Judge
Burke claiming that the search was constitutionally invalid as the warrant was
based on hearsay. Judge Burke denied the application on July 3, 1969, finding,
without a hearing, that admission into evidence of the fruits of the search was
not objected to at trial by counsel and that "The search was a valid and legal
search. It was valid as an incident to a lawful arrest. It was also authorized by a
valid and legal search warrant." Judge Burke apparently based his decision on
the preliminary hearing on voluntariness of the confession and trial records and
the Appellate Division briefs. This court denied a certificate of probable cause
on October 1, 1969.
Appellant filed a second writ of habeas corpus, which is the object of this
appeal, on the grounds that the search warrant was void on its face and that
there was a failure by his attorney to object to the evidence obtained from the
search. In a supplementary petition appellant alleged that the search warrant
was invalid on the grounds that under New York law it illegally authorized a
nighttime search and that it was executed beyond the tenth day after its
issuance. Judge Curtin referred the petition to a magistrate, who recommended
that the writ be denied on the basis of Judge Burke's previous findings. After
reviewing the papers submitted, presumably the 1965 and 1966 transcripts and
certain correspondence of Irons requesting information, and the magistrate's
recommendation, Judge Curtin denied the writ without further opinion.2 This
appeal followed and appellant was assigned counsel.
It is unclear whether the claims presented here were made in the state courts.
Appellant's brief in this appeal indicates that appellant did file a pro se brief
during the initial appeal to the Appellate Division raising the issue of the
validity of the search warrant.3 Neither Judge Burke nor Judge Curtin discussed
the issue of exhaustion. Given the uncertainty in the record before us, we must
remand for consideration whether the issues presented for review have ever
been presented to the state courts. See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 490, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Picard v.
Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Fay v.
Noia, 372 U.S. 391, 417-20, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
6
Even if appellant exhausted his state remedies, the question is open whether he
deliberately waived his Fourth Amendment claims by failing to object to the
introduction of the evidence at trial.4 Fay v. Noia, 372 U.S. at 438-40, 83 S.Ct.
822. It will be relevant to determine whether appellant's claims were presented
to the Appellate Division on direct appeal since under New York law "no
objection (at trial) is required to preserve for appellate review a deprivation of a
fundamental constitutional right, and the failure to object does not waive the
defendant's state remedies for the preservation of those rights." United States ex
rel. Schaedel v. Follette, 447 F.2d 1297, 1300 (2d Cir. 1971). Failure to raise a
constitutional issue on appeal may, however, constitute a waiver of state
remedies. Id.
If the issues of exhaustion and waiver are resolved in appellant's favor, or if
appellant does exhaust his state remedies without success, then appellant is
entitled to a hearing on the issue of the constitutional validity of the search
warrant under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d
637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964), even as modified by United States v. Harris, 403 U.S. 573, 91 S.Ct.
2075, 29 L.Ed.2d 723 (1971).5 There is nothing whatsoever in the papers
presently before us to support a finding of probable cause; indeed the very
affidavit supposedly supporting the warrant is altogether missing, as apparently
it was before Judge Burke.6 While in 1969 appellant, in a prior habeas corpus
petition, presented this issue to Judge Burke, Judge Burke without a hearing, on
the basis of the trial transcript and "Huntley"7 hearing transcript, decided that
the search warrant was valid and the search was incident to a lawful arrest.
Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1086, 10 L.Ed.2d 148 (1963),
does not favor deciding successive habeas corpus petitions if the first were
adversely decided on the merits and the ends of justice would not be served by
reaching the merits of the subsequent application.8 For the first decision to be
given controlling weight it must also be final on the merits. In Sanders no
appeal was taken from the first petition, making it final. Here, in the 1969
proceeding, appellant, proceeding without counsel, moved this court for a
certificate of probable cause for leave to proceed on appeal in forma pauperis
and for assignment of counsel. That motion was denied without opinion. Since
on the merits, assuming exhaustion and waiver have been successfully resolved,
we do not find the 1969 appeal to have lacked merit, note 6 supra, we presume
the denial of the motion was without prejudice for failure to exhaust state
remedies. Thus, we are not bound by the nonfinal 1969 proceeding.
8
We do not need to consider appellant's claims that the search warrant did not
comply with the then-effective 801 of the former New York Code of
Criminal Procedure9 for nighttime searches because it did not state that the
officer was positive that a gun would be found or that the warrant was void
when executed because it was older than 10 days.10 We assume, without having
to decide, that these claims are matters of state law unreviewable in federal
courts.11 See United States ex rel. Terry v. Henderson, 462 F.2d 1125, 1131 (2d
Cir. 1972); United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir.
1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961).
Judgment reversed and remanded.
Of the District of Montana, sitting by designation
The text of the search warrant reads:
Proof, by affidavit, having been this day made before me, by Sgt. Duane
Metzger that there is probable cause for believing that Frank E. Irons AKA
Eugene Frank Irons has in his possession one 38 Cal. Smith & Wesson Snub
Nose revolver Ser # G-182596 that was stolen in the commission of a Burglary
at room 103-436 S. Salina St. in the City of Syracuse, N.Y. on 16 July, 1965.
You are, therefore, Commanded, at any time of the day or night to make
immediate search on the person of Frank E. Irons AKA Eugene Frank Irons
viz.: in the City of Syracuse or County of Onondaga, N.Y., for the following
property 1-38 Cal. Smith & Wesson Revolver (Snub Nose) Ser # G-182596.
Title 28 U.S.C. 636(b)(3) reads:
(b) Any district court of the United States, by the concurrence of a majority of
all the judges of such district court, may establish rules pursuant to which any
full-time United States magistrate, or, where there is no full-time magistrate
reasonably available, any part-time magistrate specially designated by the
court, may be assigned within the territorial jurisdiction of such court such
additional duties as are not inconsistent with the Constitution and laws of the
United States. The additional duties authorized by rule may include, but are not
restricted to
(3) preliminary review of applications for posttrial relief made by individuals
convicted of criminal offenses, and submission of a report and
recommendations to facilitate the decision of the district judge having
jurisdiction over the case as to whether there should be a hearing.
(Emphasis added.)
Here Judge Curtin also reviewed the papers submitted to Magistrate Maxwell in
deciding to dismiss the petition. Anything less would be an impermissible
delegation of decision-making authority. Cf. CAB v. Carefree Travel, Inc., 513
F.2d 375, 378-83 (2d Cir. 1975); Note, Masters and Magistrates in the Federal
Courts, 88 Harv.L.Rev. 779 (1975). See generally Wingo v. Wedding, 418 U.S.
461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974) (magistrate cannot conduct habeas
corpus evidentiary hearings).
3
This court has been unable to locate copies of the Appellate Division briefs, as
they have apparently been destroyed
The State argues that in light of Irons' confession the issues in this appeal are at
most harmless error, citing Harrington v. California, 395 U.S. 250, 89 S.Ct.
1726, 23 L.Ed.2d 284 (1969), and Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967). It is elemental, however, that if the search were
invalid the confession may have been tainted by illegal discovery of the jewelry
obtained from Irons by means of the search. See Wong Sun v. United States,
371 U.S. 471, 484-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)
The issue must be met since there would be no point in remanding this case for
determination of procedural issues if there were no underlying substantive issue
to be resolved
Irons has made diligent effort himself to locate the affidavit, but, for example,
the Clerk of the Onondaga County Court states that he does not have it.
Apparently Judge Burke had before him only the transcripts referred to above
and the Appellate Division briefs. We have reviewed those transcripts and can
find no indication of the information given the magistrate who issued the
search warrant or facts establishing probable cause
People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965)
Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963),
involved 28 U.S.C. 2255 but held there was no need to differentiate 28 U.S.C.
2254 for purposes of that decision. Id. at 15, 83 S.Ct. 1068. Sanders points
out that 2255 requires a hearing unless the records " 'conclusively show' that
the claim is without merit." Id. at 6, 83 S.Ct. at 1072. Townsend v. Sain, 372
U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), mandates similar evidentiary
treatment under 2254. Where there are disputed facts, see note 6, supra,
justice requires less weight to be given to prior habeas corpus applications
which have been dismissed without a hearing. See generally United States ex
rel. Lewis v. Henderson, 520 F.2d 896, 904 (2d Cir. 1975)
9
Former New York Code of Criminal Procedure 801 provided:
The magistrate must insert a direction in the warrant, that it be served in the
day time, unless the affidavits be positive that the property is on the person, or
in the place to be searched; in which case, he may insert, a direction that it be
served at any time of the day or night.
Section 801 of the New York Code of Criminal Procedure was in effect at the
time of these events, but has been superseded by N.Y.Crim.Proc.Law 690.35
(McKinney 1971).
10
Appellant does not discuss in his brief here the issue of the warrant's invalidity
after ten days have passed. Here the warrant was issued on July 16 and used 25
minutes into July 26. This could well be considered within 10 days. How days
are computed to assess the effective life of a state warrant is an issue of state
law unless appellant alleges that a warrant is allowed to be effective so long as
to be a denial of due process. Here no such allegation has been or could be
raised
11
See generally United States v. Smith, 340 F.Supp. 1023, 1029 (D.Conn.1972),
which says,
The Second Circuit has specifically left open the question of whether the
admissibility in a federal trial of evidence seized at nighttime pursuant to a
warrant issued by a state judicial officer is governed by Rule 41(c) or by state
law, Conn.Gen.Stat. 54-33a, which imposes no extra requirement of certainty
for a nighttime search. United States v. Ravich et al., 421 F.2d 1196, 1201, n. 5
(2d Cir. 1970), cert. denied 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970).
