727 F.

2d 222

Jesse JOHNSON and Cynthia Hall, Petitioners-Appellees,

v.
Charles J. SCULLY, Warden, Greenhaven Correctional
Facility,
and Phyllis Kurrly, Correction Superintendent,
Bedford Hills Correctional Facility,
Respondents-Appellants.
No. 237, Docket 83-2162.

United States Court of Appeals,

Second Circuit.
Argued Oct. 13, 1983.
Decided Jan. 27, 1984.

Shulamit Rosenblum, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth

Holtzman, Dist. Atty., and Barbara D. Underwood, Asst. Dist. Atty.,
Brooklyn, N.Y., on brief), for respondents-appellants.
Jeffrey A. Rabin, Brooklyn, N.Y., for petitioners-appellees.
Before KAUFMAN, NEWMAN and DAVIS, * Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This is, we trust, the final chapter in a saga that well illustrates the
difficulties of according due recognition to the prerogatives of state courts
when state prisoners seek to vindicate their constitutional rights by
seeking a federal writ of habeas corpus. A visitor from another country,
even most citizens of this country, would scarcely believe the procedural
history of this case. As the patient reader will discover, there is now
presented for decision by this Court the substantive issue whether the
conduct of the state judge who presided at the trial of petitioners Jesse
Johnson and Cynthia Hall in 1973 exceeded the bounds of fairness
mandated by the Due Process Clause of the Fourteenth Amendment, an
issue first sought to be presented to this Court in 1979. Even now, eleven
years after the trial and five years after petitioners first brought their claim

to this Court, the prosecutors representing the State of New York urge us
not to rule on the merits of the claim, suggesting that the claim has been
brought either too soon or too late. For the reasons that follow, we
conclude that this is the time to decide the merits and that the conduct of
the state court trial judge, though disquieting in several respects, did not
transgress constitutional standards.
I. Procedural History
Johnson and Hall were convicted in 1973 after a jury trial in New York
State Supreme Court (Aaron Koota, Justice) on charges of criminal
possession and sale of heroin. The Appellate Division affirmed without
opinion, 46 A.D.2d 739, 361 N.Y.S.2d 325 (2d Dep't 1974), leave to
appeal to the New York Court of Appeals was denied on February 4,
1975, and the United States Supreme Court denied certiorari, 422 U.S.
1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975). In 1976 petitioners filed a
petition for a writ of habeas corpus in the District Court for the Eastern
District of New York. Ultimately a hearing was held, and on February 5,
1979, the District Court (Edward R. Neaher, Judge) granted the writ.
Johnson v. Metz, No. 76-442 (E.D.N.Y.1979), reprinted in Johnson v.
Scully, 563 F.Supp. 851, 860-876 (Appx. A) (E.D.N.Y.1982). In a
carefully considered opinion Judge Neaher concluded, from his
examination of the state court trial transcript, that the trial judge "so far
exceeded his permissible role" as to deny petitioners "a fundamental
element of due process." Id. at 873.
Upon the State's appeal, this Court reversed, accepting the prosecutor's
argument that petitioners had failed adequately to exhaust their state court
remedies. Johnson v. Metz, 609 F.2d 1052 (2d Cir.1979) (Johnson I ). We
ruled that the claim of prejudicial conduct by the trial judge had been
presented to the state appellate courts as a violation of state law or a matter
calling for the exercise of the state courts' exercise of their supervisory
power, rather than as a violation of the federal Constitution. Though
petitioners had specifically called to the attention of the state courts the
instances of conduct by the trial judge that they claimed were
fundamentally unfair, we ruled their papers insufficient to alert the state
courts to the federal nature of their complaint. Writing the principal
opinion for the panel, Judge Gurfein recognized the potential problem
presented by section 440.10(2)(c) of the New York Criminal Procedure
Law (McKinney 1971), which requires a state court judge to deny a
motion to vacate a judgment of conviction sought on an issue that a
defendant unjustifiably failed to raise on direct appeal, if the record
underlying the judgment contained sufficient facts to have permitted

adequate review of the issue. Noting uncertainties concerning the

construction New York courts would give this provision, Judge Gurfein
wrote, "It is difficult for this panel to believe, however, that no postconviction remedy whatever will be available by way of state collateral
relief when a serious federal constitutional issue is involved." 609 F.2d at
1056. The writer of this opinion concurred, expressing the view that
petitioners' claim was being returned "for what will surely be sensitive
examination by the state courts." Id. at 1057 (Newman, J., concurring).

Petitioners then filed in the New York Supreme Court a motion to vacate their
convictions, pursuant to N.Y.C.P.L. Sec. 440.10. The motion was denied solely
on the procedural ground that petitioners had failed to raise their claim as a
federal claim on their original direct appeal. Leave to appeal from that ruling
was denied.

Petitioners returned to the District Court, no doubt confident that their second
attempt to secure relief from the state courts would overcome the exhaustion
barrier to the federal courthouse and entitle them to a ruling on the merits. The
District Court, with evident reluctance, rejected their claim on procedural
grounds. Johnson v. Scully, No. 81-8163 (E.D.N.Y. June 25, 1982), reprinted in
Johnson v. Scully, supra, 563 F.Supp. at 881-82 (Appx. C). Relying on Forman
v. Smith, 633 F.2d 634 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct.
1710, 68 L.Ed.2d 204 (1981), the Court ruled that petitioners' failure to raise a
federal claim on their direct appeal from their conviction amounted to a
forfeiture of that claim under the rule of Wainwright v. Sykes, 433 U.S. 72, 97
S.Ct. 2497, 53 L.Ed.2d 594 (1977), and that no "cause" had been shown that
would warrant relief from that forfeiture. The Court felt constrained to rule that
the federal claim had not been presented on direct appeal, not only by our prior
decision in Johnson I but also by the subsequent decision in Daye v. Attorney
General, 663 F.2d 1155 (2d Cir.1981) (Daye I ).

Thereafter, this Court reconsidered Daye I en banc and announced a somewhat

more relaxed standard for determining what constitutes an adequate
presentation of a federal claim to a state court to satisfy exhaustion
requirements. Daye v. Attorney General, 696 F.2d 186 (2d Cir.1982) (en banc)
(Daye II ). Upon petitioners' appeal of the District Court's ruling dismissing
their petition on forfeiture grounds, a panel of this Court remanded for
reconsideration by the District Court in light of Daye II. Johnson v. Scully, 714
F.2d 114 (2d Cir.1982) (table). Upon remand, Judge Neaher found that, under
the standards of Daye II, petitioners had, after all, adequately presented their
federal claim on their original state court direct appeal to satisfy exhaustion of

state court remedies. Johnson v. Scully, supra, 563 F.Supp. at 852-59. The
District Judge noted, id. at 859, that petitioners were confining their habeas
corpus petition solely to the claim that the state trial judge's conduct had denied
them a fair trial, and that other claims presented in their petition had been
withdrawn, thereby satisfying the requirements of Rose v. Lundy, 455 U.S. 509,
102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See Rock v. Coombe, 694 F.2d 908,
914 (2d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1773, 76 L.Ed.2d 345
(1983). Judge Neaher then reached the merits of the due process claim and
reaffirmed his view that a fair trial had been denied, for the reasons set forth in
his 1979 decision. Johnson v. Scully, supra, 563 F.Supp. at 859-60. Petitioners
were ordered released unless the State elected to retry them. Johnson remains in
custody pursuant to a federal conviction obtained in 1978. Hall is at liberty on
parole, her sentence of fifteen years to life having been commuted.
4

In pressing its appeal, the State asserts that petitioners did not adequately
present their due process claim on their original direct appeal of their
convictions to satisfy exhaustion requirements and that their failure to do so
works a forfeiture under Wainwright v. Sykes, supra. The State acknowledges,
however, that under the principles set forth in Daye II petitioners' state court
remedies had been exhausted; its dispute is with the standards enunciated by the
en banc court. We agree with Judge Neaher that state court remedies had been
exhausted on petitioners' original state court direct appeal, according to the
standards of Daye II. We therefore need not consider the State's contention that
if a claim is presented to a state court on direct appeal but not then sufficiently
identified as a federal claim to satisfy the exhaustion requirement, it is forfeited
unless the "cause" and "prejudice" test of Sykes is met. We can safely leave for
another day whether we are required to apply the forfeiture rule that strictly.
We therefore come, at last, to the merits.

II. The Merits

5

The conviction of petitioners stemmed from an uncomplicated transaction in

which Johnson, apparently with Hall's assistance, sold three-quarters of a kilo
of heroin to an undercover police officer for $23,000. A police informant
introduced the undercover officer to Johnson, who agreed to make the sale.
Subsequently the officer met Johnson, showed him $23,000 contained in a
green knapsack, and placed the knapsack in Johnson's car. Johnson was
observed driving to an apartment house that he sometimes shared with Hall, his
girl friend. Johnson was observed entering the building with a brown paper bag
and, shortly thereafter, coming out accompanied by Hall, who carried the green
knapsack over her shoulder. Hall disputed that she carried the knapsack from
the building, but conceded that Johnson gave it to her in the car. She testified

that Johnson told her to wait at the Centaur Bar, a neighborhood tavern, and
give the knapsack to the informant, whom she knew as Pete Knight. Hall
complied, and the knapsack was retrieved by Knight and an undercover
policewoman, who brought it to Johnson's customer, the undercover officer.
The knapsack, which had contained the $23,000, now contained two packages
of heroin.
6

At trial Johnson, who did not testify, endeavored to assert that he was not
selling to the undercover officer but only acting as his buying agent, and also
that he was the victim of entrapment. Hall denied any knowledge that the
knapsack contained heroin.

As Judge Neaher noted in his meticulous review of the transcript, the state
court trial judge played an unusually active role in the trial. He asked more
questions than either the prosecutor or the defense attorneys. He took over the
questioning of the State's first witness, the undercover police officer, for no
apparent reason and frequently asked each of the State's witnesses to repeat
aspects of their testimony damaging to the defendants. The trial judge also
needlessly emphasized the prosecution's view of the relevance of its evidence,
often discussing the evidence and the ground of its admissibility at great length
in the presence of the jury, despite defense counsel's vain pleas for discussions
at side bar.

Of special concern to Judge Neaher was the trial judge's conduct during the
direct testimony of Hall. He frequently interrupted her counsel's effort to elicit
her version of the events, posing a series of questions that reviewed minute
details of what had transpired at the meeting in the Centaur Bar. More
disturbing was his direct challenge to Hall's claim of innocence, conveyed in
this question:

The Court: Miss Hall, when Mr. Johnson gave you the knapsack and told you
to go into the Centaur Bar and give it to Pete Knight, weren't you curious at all
about what was in the knapsack?

10

The Witness: No.

11

The Court: Next question, please.

12

Also damaging to Hall's defense was the trial judge's questioning of her
concerning her knowledge of items seized by police pursuant to a search
warrant from the apartment she shared with Johnson. The items included

glucose, a scale, and a plastic bag containing white powder. The prosecution
had been denied the opportunity to offer these items on its direct case as
probative of Johnson's predisposition. The trial judge had ruled that the items
were of doubtful admissibility and prejudicial. However, the prosecution
asserted a new claim to the admission of these items when Hall, on crossexamination probing her claimed lack of knowledge of the contents of the
knapsack, denied any knowledge that Johnson kept narcotics in the apartment
or that she had seen mixing materials for heroin being taken out of the kitchen
closet. At that point the prosecution claimed the right to offer the seized
evidence to contradict Hall's denials. The trial judge ruled that Hall could be
questioned about her knowledge of the seized items, but that the items
themselves could not be received in evidence. The trial judge told counsel and
then the jury that he would personally question Hall about her knowledge of
the seized items "to avoid any possibility that the district attorney may
inadvertently ask the wrong kind of a question and then create a problem ...." In
response to the Court's questions, Hall admitted knowledge of the seized items;
she offered the explanation that she used the glucose with milk as a substitute
for sugar, that the white powder in the plastic bag was flour, and that the scale
had been in the apartment when she and Johnson first moved in and had never
been used. The judge barred the prosecutor from any further questioning
concerning these items.
13

The District Court also faulted the trial judge for giving the jury an unbalanced
summary of the prosecution and defense contentions in the instructions. The
prosecution's theory of the case and its evidence were recounted at length.
Defense contentions were set forth briefly and to some extent accompanied by
the answering contentions of the prosecution. A particularly pointed adverse
remark was made in the midst of informing the jury that it could consider Hall's
living arrangement with Johnson as bearing on her credibility:

14

The Court: Do you regard her admission that she was being kept by defendant
Johnson as an act of moral turpitude? Do decent, normal people carry on that
way?

15

Finally, the District Court noted that the entire trial was punctuated by sharp
exchanges between the trial judge and defense counsel, with defense counsel
frequently rebuked in the presence of the jury.

16

We recently considered the somewhat ill-defined standards to be applied when

a federal habeas corpus court is asked to determine whether the conduct of a
state court trial judge has denied a criminal defendant the constitutionally
mandated measure of fairness. Daye v. Attorney General, 712 F.2d 1566 (2d

Cir.1983) (Daye III ). Daye III, decided following the en banc ruling on
exhaustion of state court remedies in Daye II, was announced long after Judge
Neaher made his initial ruling on the merits of this case in 1979 and two
months after he reconfirmed that ruling in the decision now on appeal. We
identified as principal concerns the risk that the jury might be "swayed from an
independent discharge of their solemn responsibilities" and that "the trial will
not be perceived by the defendant or the public as a fair adjudication of guilt or
innocence, presided over by a neutral magistrate obliged to deal evenhandedly
between the contending forces of the prosecution and the defense." Daye III,
712 F.2d at 1571-72. However, we noted that the constitutional standard is not
transgressed as readily as the standards used by both federal and state appellate
courts in exercising their supervisory authority over the administration of
criminal justice within their respective jurisdictions. Id. at 1570-71. We
concluded:
17

A trial judge's intervention in the conduct of a criminal trial would have to

reach a significant extent and be adverse to the defendant to a substantial degree
before the risk of either impaired functioning of the jury or lack of the
appearance of a neutral judge conducting a fair trial exceeded constitutional
limits.

18

Id. at 1572.

19

After careful review of the 2,713 pages of transcript from the state court trial,
we conclude that the trial judge's conduct did not exceed constitutional
standards. His questioning of witnesses was extensive but, in the main, not
adverse to the defendants. Only with respect to the first witness, the undercover
officer, did the trial judge undertake extensive questioning to elicit new matter
that would better have been left for development by the prosecutor. Such
questioning occurred on 60 pages of the officer's testimony. Questions to
clarify the officer's answers occurred on 198 pages. A few of these questions
afforded the officer an opportunity to repeat damaging testimony, though little
of what he said was in dispute. With respect to the prosecution's eight other
witnesses, questions by the judge eliciting new evidence occurred on 20 pages,
and some of these were simply expeditious means of establishing undisputed
identifications of the defendants by the witnesses. Clarifying questions of these
eight witnesses occurred on 89 pages.

20

For the most part, the questions the trial judge asked Hall, the only defense
witness, were clarifying. These occurred on 26 pages. The only questions to
Hall of a damaging nature were the ones previously mentioned--the highly
suggestive query as to her lack of curiosity about the contents of the knapsack

and the elicitation of her knowledge of the items seized from the apartment.
Both episodes are troublesome. A trial judge is surely well-advised to refrain
from any challenging questioning of a defendant, especially a question that
blatantly reflects his own disbelief of the essence of the defense. The
questioning about the seized items appears to have been motivated by concern
that the prosecutor might venture into impermissible areas that could be
avoided by brief, direct questions from the judge. Though the judge explained
his concern to the jurors and cautioned them not to attribute any significance to
the fact that he was asking these questions, there was inevitably some risk that
jurors might think the judge was coming to the prosecution's rescue toward the
end of the trial by confronting Hall with significant evidence that had not been
in the case up to that point.
21

The jury instructions dwelled heavily on the prosecution's claims and evidence,
but that was partly attributable to the fact that most of the evidence was
presented by the prosecution. The marshalling of evidence is not subject to an
equal time requirement, though the trial judge could surely have found more
neutral ways to set forth the prosecution and defense contentions. The remarks
to counsel throughout the trial were in large part provoked by counsel
themselves, and the judge's displeasure was directed at the prosecutor as well
as the defense attorneys.

22

On balance it may safely be said that the trial judge strayed a considerable
distance from the model of a neutral magistrate. His interventions in the trial
were far more extensive than what is normally appropriate for a trial judge
endeavoring to expedite proceedings and assist the jury's understanding. And
there were some instances of pro-prosecution questioning and comment, as we
have noted. Judge Neaher reached an entirely understandable conclusion in
assessing the trial judge's conduct as constituting a denial of due process. Our
conclusion, however, is to the contrary. As in Daye III, we think that in this
case "the trial judge's conduct approached but did not cross the line that permits
us to rule that the Constitution has been violated." 712 F.2d at 1572.

23

The judgment of the District Court is reversed and the cause remanded with
directions to enter judgment for the respondents-appellants.

The Honorable Oscar H. Davis of the U.S. Court of Appeals for the Federal
Circuit, sitting by designation