# Petition — Wainwright v. Hutchins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1044%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1071 ## Text 2 3 - 1 1 02 Office - Supreme Court, U.S FILED JAN 3 1934 ALEXANDER L. STEVAS, No “ CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 LOUIE L. WAINWRIGHT, Petitioner, Vs. MICHAEL HUTCHINS, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE ELEVENTH C'RCUIT COURT OF APPEALS AND APPENDIX BRIEF OF PETITIONER ON JURISDICTION JIM SMITH Attorney General PENNY H. BRILL Assistant Attorney General Department of 'egal Affairs 401 N.W. 2nd Avenue (820) Miami, Florida 33128 (305) 377-5441 i QUESTIONS PRESENTED 1. WHETHER THE COURT OF APPEALS IN ITS INTERPRETATION OF ANDERSON V. HARLESS, U.S. , 103 S.CT. 276 (1982) AND PICARD V. CONNOR, 404 U.S. 270 (1971) HAS ABROGATED THIS COURT'S STANDARDS FOR DETERMINING WHEN A HABEAS CORPUS PETITIONER HAS "FAIRLY PRESENTED" TO THE STATE COURTS THE "S BSTANCE" OF H’S FEDERAL HABEAS CORPUS CLAIM, PARTICULARLY IN LIGHT OF A CONFI.ICT AMONG THE CIRCUITS AS TO WHAT STANDARDS SHOULD BE APPLIED IN DETERMINING WHETHER A CONSTITUTIONAL CLAIM HAS BEEN EXHAUSTED? 2. WHETHER A CLAIM THAT A PROSECUTOR'S COMMENTS IN CLOSING ARGUMENT WERE IMPRO- PER BECAUSE THEY WERE NOT BASED ON EVIDENCE BEFORE THE COURT AND THUS VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL, IS THE SUBSTANTIAL EQUIVALENT TO A CLAIM THAT THE DEFENDANT'S SIXTH AMEND- MENT RIGHT TO CONFRONT WIT- NESSES WAS VIOLATED? ii TABLE OF CONTENTS QUESTIONS PRESENTED.......-ese00. i TABLE OF AUTHORITIES.......cce0. iit PREFACE... cc ccccccccccccccccccces 1-2 OPINIONS BELOW.......cceevccecces 3-4 JURISDICTION...... Terre rrrr eee 5 CONSTITUTIONAL PROVISIONS AND STATUTES. eevee ee eoeeeeeeeeenee 4 STATEMENT OF THE Dibeéeaesececees 7-22 REASON FOR GRANTING THE EE 23-48 CONCLUSION..... *enee *eeeneeeneeeee 49 iii TABLE OF AUTHORITIES CASES Adams v. State, 192 So.?d 76? (Fla. , Per PVvrrrrevrigy: . Anderson v. Harless, U.8. , 103 SiCe. 276, (THEA 64 6cccceestoens 28, 36 Berger v. United States, 295 U.S. 78 (1934) .c.cccees Blankenship v. Estelle, 545 F.2d 510 (5th Cir. 1977) cert.denied 444 U.S, 856 (T979)....... Brown v. Cuyler, 669 F.2d 155 (3d Cir. OSE cc cccccesesstées California v. Greene, 399 U.S. 149 (1969)......4. Connor v. Auger, 595 F.2d 407 (8th Cir. TUTE? 06 066bebeoeeséoens PAGE 13 2e. 29, a 42 29 29 40, 41 32 iv TABLE OF AUTHORITIES N D CASES Daye v. Attorney General of of the State of New York, 696 F.2d 186, 198 (2d Cir. 1982)(en banc) (Van Grafeilant, J. GESOOREINE) ccccccsccececes 28 Domaingue v. Butterworth, 641 F.2d & (ist Cir. De) abbas 6666400680006 006 Duckworth v. Serrrano, 454 U.S. 1, 102 S.eGe- 18 CUE) ct ebecs oe ees Dutton v. Evans, 400 U.S. 74 CTSTO) ke ccaecnd Ex parte Hawk, 321 U.S. 114 CTDPOSD cdc eoee Ex parte Royall, 117 U.S. 241 CTERS) ceccses Favre v. Henderson, 464 F.2d (5th Cir.) ecert.denied 409 U.S. PAGE 24 27 23, 47 40, 41 23 23 46 Vv TABLE OF AUTHORITIES CONTINUED CASES Fillipini v. Ristaino, 585 F.2d 1163 (1st Cle « 1978) “ee eee “ee eeneenenee Gayle v. LeFebre, 613 F.2d 21 (2d Cir. i eee es Goddard v. State, 143 Fla. 28, 196 So. 596 CIGSS) coccccesoees Hagins v. Warden, Fort Pillow State Farm, 715 F.2d 1050 (6th Cir. 1983) .ccccccccccccees Hall v. Lowa, 705 F.2d 283 (8th Cir. 1DSS) cccceccccccececsosese Hill v. Zimmerman, 709 F.2d 232 (3d Cir. 1983) wccccccccccccccoccocs Holleman v. Duckworth, 700 F.?d 391 (7th Cir. 1983) wecccccccceccceeseees PAGE 27 28 13 30 31 29 30 vi TABLE OF AUTHORITIES CONTINUED CASES PAGE Hudson v. Rushen, 686 F.2d 826 (9th Cir. er Sa aee ee ivexe tee 32 Hutchins v. State 349 So.2d 1237 (Fla. 3d DCA 1977) oseeeeevneae eee eeeeeee 4, 15 Hutchins v. Wainwright, 715 F.2d 512 (1lth Cir. ee eevee eenenene eeee 3 7 2 James v. State, 334 So.2d 83 (Fla. 3d DCA 1976).. e**eeee *enseeee ee ewe#e 14 Johnson v. State, 88 Fla. 461, 102 So. 549 to ee 13 Jones v. Hess, 681 F.2d 687 (10th Cir. DF? ¢d¢e¢bo6sdessnekseu Canes 33 Moore v. Duckworth, 581 F.2d 639 (7th Cir. 1978) aff'd 443 U.S. TOY EPS Ecc cccotesessvecsss | SH vii TABLE OF AUTHORITIES CONTINUED CASES PAGE Nelson v. Solen, 714 F.2d 47 (8th Cir. TUOS) cevcveseveces Sceeteocss 32 Ohio v. Roberts, See -B.G8. SO CSCC) iccesvwes 41 Paulet v. Howard, 634 F.2d 117 (3d Cir. 1980).... oeeeeeee oeeeeeeeae 29 Picard v. Connor, 406 U.S. 270 (1981) vecccces i. a3; 22> ae Richardson v. State, 335 So.2d 835 (Fla. 4th DCA TEPOd ceeetedtesd ease 13 Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982) ..cccccccccccece 23 Santana v. Felton, 685 F.2d 71 (3d Cir. SEES bo Ober tdececdvsensecseese 29 Silvestri v. State, 332 So.?d 351 (Fla. 4th DCA TRIO) 0 ceddeesnwtuse 14 viii TABLE OF AUTHORITIES CONTINUED CASES PAGE Stanley v. Illinois, 405 U.S. 645, n.10..... cece 25 Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982) ccccccccccscccese pececee 30 (iON orcs scrwant pe ae 35 Thomas v. Wyrick, 623 F.2d 411 (8th Cir. 1980) .. cc ceecees cocccccccce 32 Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975) ..ccccee coccee 14 Toney v. Franzen, 687 F.?d 1016 (7th Cir. i, a ere eer eer 30 United States ex rel Nance v. Fairman, 707 F.2d 936 (7th Cir. 19S 2) a ckececessebuseekeeeee 30 ix TABLF OF AUTHORITIES CONTINUED CASES PAGE United States v. Phillips, - 664 F.2d 971 (5th Cir. 1981), cert.denied, LEDER P vccccceccece eg 42 United States v. Ragano, 476 F.2d 410 (Sth Cir. TOFS) ccccccccccecses eecccce 46 United States v. Vera, 701 F.2d 1349 (11th gg ee 42 Webb v. Webb, EG) ) be 22, 36 Webster v. Frey, 665 F.2d 88 (6th Cir. EEE Te 30 Wilks v. Israel, 627 F.?d 37? (7th Cir. EEE Ee a ee 30 Williams v. Holbrook, AQ1 F.2d 3% (1st CER, FOR) cccccccccccsccccs 27 x TABLE OF AUTHORITIES CONTINUED CASES PAGE Zicarrelli v. Gray, 543 F.2d 466 (3d Cir. 1976) wccvcccccces eoccccccce 29 CONSTITUTIONAL PROVISIONS: Fifth Amendment, United States oa EL WTYTT TTT 6, 19 Sixth Amendment, United States Gomstitutiot..cosceces coceceees ° - | ae | ale > 39, 40, 45 Fourteenth Amendment, United States Constitution......... see - STATUTES : 28 U.S.C. $1254(1) ccccccccces oe 5 Xi TABLE OF AUTHORITIES CONTINUED STATUTES : 28 U.S.C. SI2Z5S7 .cccce ce cccccces 28 U.S.C. $2254... ccccccccccves 28 U.S.C. $2254(b) ...... socccce OTHER AUTHORITIES: Desmond, Federal Habeas Corpus Review of State Court Convictions-Pro- posals for Reform, 9 Utah L.Rev. 18 (1974) ..ccccccccccces Yackle, The Exhaustion Doc- trine in a Federal Habeas Corpus: An Argument for a Return to First Principle, 44 Ohio State L.J. 393 (1983).. Letter from Chief Justice Hughes, March 23, 1937, quoting John Rutledge of South Carolina, reprinted in 81 Cong.Rev. 2814-2815 (1937).. PAGE 35 35 38 1 PREFACE The Petitioner, Louie L. Wainwright was the Appellant in the Eleventh Circuit Court of Appeals and the Respondent in the United States District Court for the Southern “istrict of Florida. The Re- spondent, Michael Hutchins, was the Ap- pellee in the Eleventh Circuit Court of Appeals and the habeas petitioner in the United States District Court. For clarity, in this brief, the parties will be referred to as the State and the Defendant.! The following reference is made in this brief: IThe only other interested party would be Jim Smith, Attorney General for the State of Florida. 2 (A) For the portions of the record below sufficient to show jurisdiction in this Court, which are contained in the Petitioner's Appendix and consists of pages Al-A195. 3 I OPINIONS BELOW The judgment and opinion of the Eleventh Circuit Court of Appeals is reported at Hutchins v. Wainwright, 715 F.2d 512 (11th Cir. 1983), and is contained in the State's Appendix at "A 3-A34." The opinion of the United States District Court for the Southern District of Florida, granting the petition for writ of habeas corpus, and the Report of the 'nited States Magistrate, which was adopted in the District Court's opinion is contained in the State's appendix at "A37-A38" and "A47-A86 is unreported. The opinion of the United States District Court for the Southern “istrict of Florida, dis-missing the "efendant's 4 first petition for writ of habeas corpus without prejudice for exhaustion of state remedies is contained in the State's Appendix at "A42-A46," and is also unreported. The per curiam affirmance without opinion of the Ratenidit*s conviction and sentence is reported at Hutchins v. State, 349 So.2d 1237 (Fla. 3d DCA 1977) and is contained in the State's Appendix at "A87-A8&," 5 II JURISDICTION On September 19, 1983, the United States Court of Appeals for the Eleventh Circuit, affirmed the United States Dis- trict Court's granting of the Defendant's Petition for Writ of Habeas Corpus. The State petitioned for rehearing. The pe- tition for rehearing was denied on November 2, 19°83. (A35-A36). The jurisdiction of this Honorable Court is invoked pursuant to the specific provi- sions of Title 28 U.S.C. §1254(1), and Amendments VI and XIV of the United States Constitution. 6 Ill CONSTITUTIONAL PROVISIONS AND STATUTES The constitutional provisions and statutes controlling the disposition of this cause are lengthy. See Amendments V, VI, and XIV of the Constitution of the United States; Title 28, United States Code, Section 1257; Title 28, United States Code, Section 2254. The pertinent text of each, set out verbatim appears in the Appendix at pages A&9-A93, 7 yt STATEMENT OF THE CASE This is a Petition for Certiorari from the opinion of the Court of Appeals for the Eleventh Circuit, in which the Court affirmed the granting of the Defen- dant's Petition for Writ of Habeas Corpus arising from his State convictions and sentences for armed robbery and assault with intent to commit second degree murder. Hutchins v. Wainwright, 715 F.2d 512, 514 (llth Cir. 1987). (A3-A34). The charges against petitioner arose from a taxicab robbery on July 17, 1975. The only witness identifying petitioner as the robber was the driver. Peti- tioner's defense was misidentification. 8 There was no other corroborating testi- mony or evidence. In his opening statement, the pro- secutor proffered to the court that he did not intend to elicit the details of | the conversations between the detective | and this individual, but was going to tell the jury what the detectives did, based on any conversations they may have had with this unkown young black male. The prosecutor also advised the court that the officers received infor- mation from this individual under a promise not to reveal his name, and had declined to give the prosecutor any identifying information. The court ruled that the prosecutor could "inquire of the officer simply as a result of his 9 investigation what did he do." 715 F.2d at 514-515. During direct examination of the detectives, testimony was elicited over the “efendant's objections, that the detectives had met with a young black male in the area where the incident occurred and that they later drove with him to the area, which was later revealed to be the "efendant's address. Id, at 515. ™ his closing argument, the prose- cutor made references to the contacts with the unidentified informant, as the following excerpts demonstrate: Mr. Goldstein: He testified he went to 1840 Northwest 10 60th Street, and you remember later on, that is where the Defendant lives. He testified that he got out of the car, and he conducted an investigation on the scene there, that he went back to his office, and he made out this photo display, and put the photograph of Michael Hutchins in the photo dis- play, and put the photograph of Michael Hutchins in the photo display, and the detec- tive went to the hospital.... * * * Then afterwards the detective got out a warrant; went to the State Attorney's Office; went to a judge; got a warrant for Michael Hutchins’ arrest; went back to that address, and where was the address? ‘*840 Northwest 60th Street, The prosecutor went on to explain the absence of the unidentified witness by saying "[{a] crime of this nature 11 creates fear" and that "people who have the fear do not want to get involved *** [t]hey do not want to physically face the accused," The prosecutor further urged the jury "not only to rely on what you have heard here," which was described as "the tip of the iceberg,” but "to consider all the circumstances involved in this crime." 715 F.2d at 515. The Defendant appealed his convic- tion to the District Court of Appeal, Third District, raising two grounds: ("') that “the trial court erred in excluding the testimony of the only defense witness on the ground of irrelevancy where the defendant proffered that this testimony was relevant to the identity of the per- petrator of the crime and would exculpate 12 the defendant, thereby violating the defendant's due process right to pre- pare and present a defense under the Sixth and Fourteenth Amendments to the constitution of the Untied States..." and (?) that “the trial court erred in al- lowing prosecutorial comments regarding the investigating officers encounters with an unidentified third person to per- vade the entire trial, where the only purpose of this argument was to lead the jury to draw the impermissible inference that this third person had identified the defendant as the perpetrator of the charged crime, but was afraid to testify in court." (A144-A145). In support of this allegation of error, the Defendant cited state cases that admonished prose- cutors from making comments that could 13 not be reasonably inferred from the evidence or which were inflammatory and calculated to raise passion or prejudice in the minds of the jury. (A162-A171). None of these cases contained any re- ference to any hearsay or confrontation clause claims.2 The Defendant was 2Adams v. State, 192 So.2d 7A? (Fla. 1966) (comments by prosecution that equated victim of homicide to wives and relatives of jurors, and that defense counsel's statements "perverted and distorted things" and "violated his oath as a lawyer and human being "were unduly prejudicial and constituted error); Goddard v. State, 143 Fla. 28, 196 So. prosecutor's statements that defendant was “low down scoundrel" and "skunk" and there has never been an ounce of remorse in the "no good black heart of that scoundrel"; although improper, held not reversible in light of overwhelming evidence); Johnson v. State, 88 Fla. 461, 102 So. 549 (1924) (prosecutor's reference to the defendant that he "went out there for what cats and dogs fight for," and "is a brute", were reversible error); Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976)(prosecutor's remarks that he "could have brought in a lot of police 14 especially concerned with the prose- cutor's explanation as to why the young biack male did not testify, and his request to the jury to not only rely on what they heard, but to consider all the circumstances. (A168-A169). The State in response, argued in its brief that the prosecutor properly argued officers’ and that case could have lasted longer constituted reversible error); James v. State, 334 So.2d 83 (Fla. 3d DCA 1976) (prosecutor's remark that pushers infest other individuals with his disease heroin although improper, was not so pre- judicial as to require a mistrial); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976) (prosecutor's remark that the state's key witnesses were "obviously able to convince the police of their truthfulness or they would have been the ones on trial was prejudicial error); Thompson v. State, 318 So.2d 549 (Fla. 4th 5A 1975) (prosecutor's comment, con- cerning additional witnesses who could have been called were prejudicial in that they lead the jury to believe that there was other evidence). 15 the facts which were established at trial and which were reasonably inferred from the facts established. The State cited to the portions in the transcript in which the two officers testified about their contact with the young black male. (A178-A181). The Third District Court of Appeal, per curiam affirmed the Defendant's con- viction, without an opinion. Hutchins v. State, 349 So.2d 1237 (Fla. 3d DCA 1977). Subsequently, Defendant filed a motion for post-conviction relief in the state trial court, alleging a violation of his state right to a speedy trial. The motion was denied by the trial court and no appeal was taken. 16 The Defendant then filed a pro se petition for writ of habeas corpus in the federal district court. In the petition, four issues were raised: (1) denial of a speedy trial; (2) exclusion of defense evidence; (3) suppression by the prose- cution of favorable evidence; and (4) the unconstitutional admission of hearsay testimony. The trial court dismissed the petition without prejudice concluding ._ — that only two of the four grounds had been exhausted. One of the two grounds held to have been exhausted was the claim of the unconstitutional admission of hearsay testimony. (A43-A45). Hutchins v. Wainwright, supra at 517. The Defen- dant did not file any further motions or petitions in the state court. 17 The Defendant filed instead a second petition for writ of habeas corpus in the federal court. The efendant alleged three grounds for relief: (1) the trial court's denial of defense counsel's request to produce a witness (7) the unconstitutional admission of hearsay testimony; and (3) the unconstitutional failure of the peosseution to disclose evidence favorable to the defense. 715 P26 at $7. After a response by the State, which conceded that the first two claims had been exhausted, but not the third, the Nefendant waived his claims of speedy trial and on the failure to disclose favorable defense evidence. The Defen- dant now with counsel, filed a 18 memorandum of law on the two claims which were alleged to be exhausted, and pre- sented the claims to the federal court as follows: A. The exclusion by the trial court of relevant and material exculpatory evidence offered by petitioner, in violation of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. B. The admission by the trial court of incriminating out-of court statements of an unidentified and undisclosed informant, in violation of the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. 715 F.2d at 518, The State then filed a response to 19 this memorandum, alleging that its prior concession that the claim of unconstitu- tional admission of hearsay had been ex- hausted was erroneous. Id. The State asserted that not only was a confronta- tion clause claim never presented to the state appellate court, but neither was the claim framed in terms of admission of hearsay evidence. 3 Rather, the State alleged that only a fifth amendment due process claim of prosecutorial misconduct had been raised. (A101-A106). The claim was therefore either waived under state procedural rules or was unexhausted. 715 F.2d at 518. 30ne of the grounds for the State's petition for rehearing in the Eleventh Circuit was the court's misstatement of the fact that the State had asserted that the Nefendant had raised a hearsay clain, but not a confrontation clause claim. (A117-A121). 20 The magistrate concluded that the confrontation clause claim was properly before him and recommended granting the writ of habeas corpus on the grounds that the admission of the hearsay testimony and the prosecutor's comments in closing argument referring to the testimony about the anonymous informant violated the Defendant's rights under the confronta- tion clause of the Sixth Amendment. 715 F.2d at 518. (A61-A63). The dis- trict court adopted this recommendation. Id. (A37-A38). The State appealed to the Eleventh Circuit Court of Appeals. The Court of Appeals affirmed holding that "the issue, as presented on direct appeal, albeit obliquely stated, did sufficiently alert 21 the state court to a confrontation issue." Hutchins v. Wainwright, supra at 519. Although, not condoning the matter in which the claim was presented to the state courts, and noting the inartful wording of his brief, the Eleventh Circuit held that the substance of the “efendant's claim was that the prosecu- tion obtained an unfair advantage by effectively introducing into evidence the out-of-court statements of the unidenti- fied informant, and relied upon those statements as evidence of guilt. Because this is what the confrontation clause was designed to prohibit, the substance of the claim had been presented to the state appellate court. Id. The State filed for rehearing on the 22 grounds of misstatement of facts and the improper application of this Court's opinions in Anderson v. Harless, U.S. ___, 103 S.Ct. 276, (1982); Webb v. Webb, 451 U.S. 493 (1981), and Picard v. Connor, 404 U.S. 779 (1981). (A117- A121. Rehearing was denied (A35-A36) and the State moved for a stay of the man- date. The Eleventh Circuit granted the motion for state of the mandate, pending review in this Court. (A94-A95). 4cee footnote 3, supra. 23 V REASONS FOR GRANTING THE PETITION For almost one hundred years, this Court has required that a State prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” ™Tn Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 1204 (1982), this Court held that this requirement, now codified in 28 U.S.C. §2254(b) provides a "straightfor- ward exhaustion requirement," a "simple 5See Ex parte Royall, 117 U.S. 241 (T8886); Ex parte Hawk, 321 U.S. 114 (1944); Picard v. Connor, 404 U.S. 270 (1971); Duckworth v. Serrrano, 454 U.S. {, 102 3.CE. TS CiFe' )- 24 and clear instruction to potential litigants" that before they bring any claims to federal court they should have first taken each claim to the state court. However, from a review of the opinion by the Court of Appeals in the instant case and of other circuit courts of appeal, it is clear that in actual practice the “simple and clear instruction" has often been ignored and the application of the exhaustion requirement has been less than "straightforward."© For this reason this Court should accept jurisdiction. 6See Daye v Attorney General of the State of New ork, 696 F.2d 186, 198 (7d Cir. 1982)(en banc) (Van Graafeiland, J. dissenting). A. WHEN HAS A FEDERAL HABEAS CORPUS PETITIONER "FAIRLY PRESENTED" TO THE STATE COURTS THE "SUBSTANCE" OF HIS FEDERAL HABEAS CORPUS CLAIM. In Picard v. Connor, 404 U.S. 270, 276-277 (1971), this Court held that the principles of comity, require that a federal habeas petitioner provide the state courts with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim. A petitioner need not cite a "book and verse on the federal constitu- tion," but the substance or the substan- tial equivalent of the federal claim must first be fairly presented to the state courts. Id. at 275, 277-278. In Stanley v. Illinois, 405 U.S. 645, 658 26 n.10, this Court looked to the method of analysis "to determine the substance of the claim. Ten years later, in Anderson v. Harless, _U.S.__, 103 S.Ct. 276, (1982), this court reaffirmed this prin- ciple, adding that "it is not enough that all the facts necessary to support the federal claim were before the State courts," or "that a similar state-law claim was made," Id. at 277. Further- more, this Court doubted that "a defen- dant's citation to a state-court decision predicated solely on state law will be sufficient to fairly apprise a reviewing court of the potential federal claim merely because the defendant in the cited case advanced a federal claim. Id. at 2778 n.3. 27 The circuit courts of appeal have interpreted these decisions in a variety of ways to determine whether the sub- stance of a federal claim has been fairly presented to the state courts. The First Circuit requires that the federal habeas corpus petitioner to have presented the state courts with all the zfacts and the same governing legal argu- ments, but allows some reformation of the claims so long as the effect is not to transform the claim or cast it in signi- ficantly different light.’ The Second Circuit has adopted a more expansive in- terpretation of when the substance of a 7Williams v. Holbrook, 691 F.2d * (1st Cir. 1982); Domaingue v. Butterworth, 641 F.2d 8 (ist Cir. 1981); Fillipini v. Ristaino, 585 F.2d 1163 (1st Cir. 1978). 28 federal claim has been presented.8 The Second Circuit adopted a four part test; whether the petitioner relied on perti- nent federal cases employing a constitu- tional analysis: relied on State cases employing constitutional analysis in like fact situations: asserted the claims in terms so particular as to call to mind a specific right protected by the constitu- tion: or alleged a pattern of facts that is well within the mainstream of consti- utional litigation.? 8Daye v. Attorney General of the State of New York, supra. 9Iinterestingly, the Second Circuit in its en banc decision in Naye, rejected its prior decision in Gayle v. LeFebre, 613 F.2d 21 (2d Cir. 1980) which had ~ imposed a requirement that the constitu- tional claim have been plainly labeled as such to the state court. Gayle v. LeFebre was cited with approva y this Court in Anderson v. Harless, _U.S.__, Foe Bsc. Ba ett 29 The Third Circuit has held that exhaustion requires not only the facts and the cases, but a focus on the con- stitutional claim, especially where the two issues have much in common and one may lie in the shadow of the other with- out being observed.!9 The Fifth Circuit recognizes that a petitioner has pre- sented his claim to the state court if it is one that the courts have long been put on notice implicates federal constitu- tional rights.!! The Sixth Circuit after this Court's decision in Anderson 10Hill v. Zimmerman, 709 F.2d 232 (3d Cir. 1983). Santana v. Felton, 685 F.2d 71 (3d Cir. 1982); Brown v. Cuyler, “49 F.2d 155 (3d Cir. 1982); Paulett v. Howard, 634 F.2d 117 (?d Cir. T98%); Zicarrelli v. Gray, 543 F.2d 466 (3d Cir. 11lBlankenship v. Estelle, 545 F.2d 510 (5th Cir. 1977) cert.denied 444 U.S. 856 (1979). 30 v. Harless, supra, has held that a state will not be held to have perceived a con- stitutional claim each time a litigant cites analogous state law. !2 The Seventh Circuit like the First Circuit requires the same legal theory, but with a minor variation.!3 However the Seventh Circuit requires that the petitioner inform the state of the factual basis and to have argued that the facts violated his constitutional rights. \2Happins v. Warden, Fort Pillow State Farm, 5 F.2d 1050 (6th Cir. 1983). See also Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982); Webster v. Frey, 665 F.2d 88 ( th Cir. 1981). 13tmited States ex rel Nance v. Fairman, 707 F.2d 936 (7th Cir. 1983); Holleman v. Duckworth, 700 F.2d 391 (7th T. ; Toney v. Franzen, 687 F.2d 1016 (7th Cir. 1982); Wilks v. Israel, 627 F.2d 32 (7th Cir. 1982). 31 However, because the federal courts must apply the exhaustion test with caution, novel claims, or ones that have a dif- ferent focus, will not meet the exhaus- tion requirement. Furthermore an "oblique" reference to a constitutional issue will not have fairly presented the issue to the state court. !4 Although the Eighth Circuit has recognized that the citation to a case presented on the same federal ground as that contained in the federal petition is sufficient for exhaustion,!5 . 1983); the court has also required that the (7th Cir. 1978) aff'd 443 U.S. 711 (1979). 15Hall v. Iowa, 705 F.2d 283 (8th Cir. 1983). 32 petitioner have cited either the consti- tution or the federal constitutional cases in order to present his claim to the state court.'!*® The Ninth Circuit, while requiring the state to have the opportunity to pass upon the petitioner's constitutional claim, does not require for exhaustion that the state have had the opportunity to pass on the claim under the particular authorities advanced in the federal habeas court.!? The Tenth Circuit, like the First Circuit will not find a claim to have been exhausted where the federal claim is significantly dif- ferent and more substantial than the 16Nelson v. Solem, 714 F.2d 57 (8th Cir. 1983); Thomas v. Wyrick, 623 F.2d 411 (8th Cir. 1980); Conner v. Auger, 595 F.2d 407 (8th Cir. 1979). 17qHudson v. Rushen, 686 F.2d 826 (9th Cir. 1982). 33 claim presented in the state court,!8 Finally, the Eleventh Circuit as ex- pressed by the opinion in the instant case adopted an analysis for determining if the substance of the claim had been presented, similar to that of the Second Circuit. The Eleventh Circuit found the pattern of facts, as argued by the state prosecutor during his closing argument to have fallen within the mainstream of constitutional litigation of confronta- tion clause analysis, despite the failure of the petitioner to cite the sixth amendment or the confrontation clause and '8jones v. Hess, 681 F.2d 687 (10th Cir. 1982). 34 the oblique nature in which the issue was raised, !9 The finding by the Court of Appeals in the instant case that an "oblique' statement of the issues that is "inart- fully worded" which does not cited to any constitutional provision or federal case, but cites only to a similar state law claim and cases, has fairly presented the substance of the federal constitutional claim to the state courts is an abroga- tion of this Court's decisions in Anderson v. Harless, supra and Picard v. Connor, supra. To hold that an "oblique" statement of the issue provided the state appellate courts with a "fair 19Hutchins v. Wainwright, 715 F.2d 512, 519 (lIth Cir. OBS) TRIOLA31) « 35 opportunity” to apply controlling legal principles demeans the state appellate process by finding that the state appel- late judges are less competent than federal judges to protect the constitu- tional rights of criminal cefendants. See Stone v. Powell, 428 U.S. 465, 493-494 n.35 (1976).29 The decision of the Court of Appeals imposes unnecessary burdens on its federal district courts and does not support the policy of federal-state comity, which underlies the doctrine of exhaustion. In an analogous case involving this Court's jurisdiction under 28 U.S.C. 2%See also Yackle, The Exhaustion Doctrine in a Federal Habeas Corpus: An Argument for a Return to First Princi- ple, 44 Ohio State L.J. 393 (1983); Desmond, Federal Habeas Corpus Review of State Court Convictions - Proposals for Reform, 9 Utah L. Rev. 18 (1974). 36 §1257, this Court in Webb v. Webb, 451 U.S. 493 (1981) held: At the minimum, however, there should be no doubt from the record that a claim under a federal statute or the Federal Constitution was pre- sented in the state courts and that these courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law. 451 U.S. at 510. (Emphasis in original). This view was reinforced a year later when this Court held that "it is not enough that all facts necessary to sup- port the federal claim were before the State courts... or that a similar state law claim was made." Anderson v. Harless, _U.S.__, 103 S.Ct. at 277. 37 An "oblique" statement of the issues that is "inartfully worded" can only leave a doubt that a federal claim was presented to the state court. "Book and verse" is not required but a "fair oppor- tunity” is required. The Nefendant's brief in the state appellate court did not give the State court a "fair oppor- tunity” to review the confrontation clause issue and the Court of Appeals erred in concluding that he had done so. The Court of Appeals abrogation of the exhaustion requirement as well as the apparent diversity and conflict among the circuits as to when a claim has been fairly presented to the state courts, warrants jurisdiction under this Court's rules and the substantive law. The 38 express purpose of the framers of the constitution in establishing this Court was "to secure the national rights [and] uniformity of Judgments." Letter from Chief Justice Hughes, March 23, 1937, quoting John Rutledge of South Carolina, reprinted in 81 Cong. Rec. 2814-2815 (1937). That supreme purpose of this Court would be properly met by the exercise of jurisdiction herein. B A C'™AIM THAT A PROSECUTOR'S COMMENTS IN CLOSING ARGUMENT WERE IMPROPER BECAUSE THEY WERE NOT BASED ON EVIDENCE BEFORE THE COURT AND THUS VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL IS NOT THE SUBSTANTIAL EQUIVALENT TO A CLAIM THAT THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CON- FRONT WITNESSES WAS VIOLATED. The Court of Appeals in the instant 39 case held that the Defendant's claim in state court that the prosecutor's com- ments in closing argument were improper because they were not based on evidence before the court and thus violated his right to a fair trial was the substan- tial equivalent to a claim that the Defendant's Sixth Amendment right to con- front witnesses was violated. The court held that in effect the substance of the Defendant's claim was that the prosecu- tion had obtained an unfair advantage by effectively introducing into evidence the hearsay out-of-court statements of the unidentified informant and then relied on those statements as evidence of the Nefendant's guilt. Because this was exactly what the confrontation clause was designed to prohibit, the Court of 40 Appeals held that the Defendant had suf- ficiently alerted the state appellate court to a confrontation issue. Hutchins v. Wainwright, supra at 519. (A30-A31). The function of the Confrontation Clause of the Sixth Amendment is to “advance a practical concern for the accuracy of the truth-finding process in a criminal trial by assuring that the ‘trier of fact [has] a satisfactory basis for evaluating the truth'" of adverse evidence, either by personal confronta- tion at trial or some other constitu- tionally acceptable basis for determining the reliability of the evidence. Dutton v. Evans, 400 U.S. 74, 89 (1970) quoting California v. Greene, 399 U.S. 149 (1969). This Court has repeatedly stated 41 that although the Confrontation Clause and the common-law hearsay rule "stem from the same roots," Dutton v. Evans, supra at 86, “it is quite a different thing to suggest that the overlap is complete. California v. Green, supra at 155. In analyzing whether hearsay testi- mony is admissible in light of the Con- frontation Clause, "the prosecution must either produce or demonstrate the un- availability of the declarant whose statement it wishes to use against the defendant," and if unavailability is demonstrated, the statement must also bear adequate "indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 65-66 (1980) (citations omitted). However, 42 a claim that the prosecutor based his closing argument on evidence not before the court. requires no such analysis. The test for determinine the existence of prosecutorial misconduct regarding closing arguments is whether the remarks were improper and whether they prejudi- cially affected substantial rights of the defendant. See Berger v. United States, 295 U.S. 78, 84-89 (1934); United States v. Vera, 701 F.2d 1349, 1361 ('!th Cir. 1983): "nited States v. Phillips. “*% F.2d 971, 1030 (Sth Cir. 1981), cert. denied, _—_-U.S.__—s«,:—-* 1977 S.Ct. 2965 (1982). The actions of the prosecutor are not judged on whether the declarant was available to testify and if the statement was reliable. 43 This was the analysis urged by the Defendant to the state appellate court. The Defendant alleged that the trial court erred in allowing the prosecutor to comment on the investigating officers' testimony concerning encounters with an unidentified informant, where the only inference was that this informant had identified the Defendant as the perpetrator of the crime, but was afraid to testify in court. (A168-A169). In support of his argument, the Defendant cited state cases that admonished prosecutors from making comments that could not be reasonably inferred from the evidence or which was inflammatory and calculatd to raise passion or prejudice in the minds of the jury. (A166-Ai/%). No reference was made to any hearsay 44 violations or confrontation clause claims. In fact the Defendant did not challenge the admission of the police officers’ testimony. The State's argument in reply revolved around the fact that the prose- cutor was properly arguing the facts which were established at trial and whieh were reasonably inferred from the facts established. The state specifically cited to portions in the transcript in which the two officers testified about their contact with the young black male. If the Defendant had in fact argued that the prosecutor had obtained an unfair ad- vantage by introducing into evidence the informant's out-of-court statements as evidence of the Defendant's guilt, then the state's argument to the appellate 45 court would have been absurd and a con- fession of error. Rather, the State's argument was a proper reply to the argu- ment raised: that the prosecutor was not commenting on evidence not before the jury because the police officer's tes- timony concerning the unidentified in formant had been admitted. The State was obviously not on notice that the Defen- dant was raising a violation of the con- frontation clause of the Sixth Amendment and the Due Process Clause of the Four- teenth Amendment. 2! 21A review of the Defendant's brief to the state appellate court shows that counsel for the Nefendant was well aware of how to raise a federal constitutional issue. His first issue on appeal was framed in specific constitutional terms. (A146-A161). Furthermore, the cases re- lied on by the Court of Appeals to find a confrontation clause violation were in existence at the time of the state ap- pellate brief and could have been cited . 46 The State submits that a claim that a prosecutor's comments in closing argu- ment were improper because they were not based on evidence before the court, is not the substantial equivalent of a con- frontation clause claim. This is es- pecially so where although the facts are presented, the issue is framed in terms of prejudicial prosecutorial comments and not in terms of whether the testimony of the police officers was hearsay or violated his right of confrontation, or even whether the prosecutor's comments by themselves were hearsay or violated the Defendant's right to confrontation, and there is a total lack of citation to See, e.g., Favre v. Henderson, 464 F.2d (5th Cir.) cert.denied 409 U.S. 942 (1972); United States v. Ragano, 476 F.2d 410 (5th Cir. 1973). 47 federal constitutional provisions and authorities. Finally, because the “method of analysis" for the issues are different, a claim of prosecutorial comments not based on the evidence cannot be the substantial equivalent of a confrontation claim.22 As such, it cannot be gainsaid, that the Defendant provided the state appellate court with a fair opportunity to review his constitutional claims. The 221t must also be pointed out that any violation of the confrontation clause, found by the Court of Appeals, would be irrelevant for this Court's determina- tion of the issues in this Petition. As this Court stated in Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18 (1981), there is no clear violation exception to the exhaustion requirement. The Defendant, although possibily pre- cluded from raising this issue on a motion for post conviction relief in the state trial court, he is not precluded from raising it as an issue in a petition for writ of habeas corpus in the state appellate court alleging ineffective assistance of appellate counsel. Defendant's claims pA have been rejected on the requirements of exhaustion and the State would there- fore urge the Court to grant certiorari on this issue and reaffirm the princi- ples of comity as espoused in this Court's prior decisions and which have been severely abrogated by the opinion of the Court of Appeals. CONCLUSION The State submits there is an issue of great public importance herein in the context of what standards are to be ap- plied by the federal courts in deter- mining whether a federal habeas corpus petitioner has fairly presented to the state courts the substance of his 49 federal habeas corpus claim. This Court has jurisdiction and should take juris- diction over this matter of compelling national importance. Respectfully submitted, TIM SMITH Attorney General PENNY H. BRILL Assistant Attorney General Department of Legal Affairs 401 N.W. 2nd Avenue, (820) Miami, Florida 33128 (305) 377-5441 No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 LOUIE L. WAINWRIGHT, Secretary, Florida Department of Corrections, Petitioner, vs. MTCHAEL HUTCHINS, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE ELEVENTH CIRCUIT COURT OF APPEALS APPENDIX JIM SMITH Attorney General PENNY H. BRILL Assistant Attorney General Department of l.egal Affairs 401 N.W. 2nd Avenue (820) Miami, Florida 33128 (305) 377-5441 Ai CONTENTS PAGE Judgment and Opinion of the Eleventh Circuit Court of BEES sc eseccccccccsacecescee ° A1-A34 Order, Eleventh Circuit Court of Appeals, Denying Petition for Rehearing........ A35-A36 Order and Judgment, United States District Court for the Southern District of Florida Granting Writ of Eg See occccce A37-A38 Order, United States District Court for the Southern District of Florida, Denying Stay........ ° A39-A41 Order, United States District Court for the Southern District of Florida, Dismissal Without CC. .4C eae ed be eee ee ee ee A42-A47 Report of United States Dis ccadeqaewecee een ewe A47-A86 Opinion, Florida District Court of Appeal, Third RE eee ee A87-A88 Aii CONTENTS CONTINUED Constitutional and Statutory Provisions..... coee Order, Eleventh Circuit Court of Appeals, Granting Stay.cee. TUTESEEELEPEEE TT Excerpts from Brief of Respondent/Appellant, Eleventh Circuit Court Of Appeals..ccccccccccsccccccs Excerpts from Respondent/ Appellant's Motion for Rehearing, Eleventh Circuit Court of Appeals...... eocvecce Excerpts of Brief of i nage perahar eget Florida District Court of Appeal, Third District.... Excerpts of Brief of Appellee-State of Florida, Florida District Court of Appeal, Third District....... PAGE A89-A93 A94-A95 A96-A116 A117-A121 A122-A172 A173-A195 Al UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 83-5256 D.C. Docket No. 82-420-CIV-ALH MICHAEL HUTCHINS, #053170, Plaintiff-Appellee, versus LOUIE L. WAINWRIGHT, ET Al.., Defendants-Appellants. Appeal from the United States Dis- trict Court for the Southern District of Florida Before HILL, KRAVITCH and HENDERSON, Circuit Judges. JUDGMENT This cause came on to be heard on the transcript of the record from the A2 United States District Court for the Southern District of Florida, and was argued by counsel; ON CONSIDERATION WHEREOF, Tt is now here ordered and adjudged by this Court that the order of the District Court appealed from, in this cause be, and the same is hereby, AFFIRMED. September 19, 1983 A3 Michael HUTCHINS, #053170, Plaintiff-Appellee, Ve. Touis L. WAINWRIGHT, et al., Nefendants-Appellants. No. 83-5256. United States Court of Appeals, Eleventh Circuit. Sept. 19, 1983. Penny H. Brill, Asst. Atty. Gen., Miami, Fla., for defendants-appellants. Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for plaintiff- appellee. Appeal from the United States Dis- trict Court for the Southern District of Florida. Before HILL, KRAVITCH and HENDERSON, Circuit Judges. JAMES C. HILL, Circuit Judge: A4 Petitioner, Michael Hutchins, was found guilty of armed robbery and assault with the intent to commit second degree murder. The conviction arose from Mr. Hutchins’ robbery of a taxicab driver on July 17, 1975. The pivotal issue at trial was the identity of the perpetra- tor. The taxicab driver did identify the petitioner as the man who had robbed him. The only other evidence against the pe tioner is the evidence which formed the basis of this appeal. After the robbery occurred, two investigative police officers were sent to the scene of the crime. During their investigation, it appears that a young black male approached the officers and AS informed them of who committed the crime and where the perpetrator resided. It was based on this information that the petitioner's photograph was incorporated into a spread and shown to the victin, leading to the defendant's being charged. However, the informant never appeared or testified at the trial. The two police officers who received the tip from the anonymous informant refused to identify the young man to either the prosecution or the petitioner. At trial, during the opening state- ment, the prosecutor detailed for the jury the police investigation leading to the arrest of the petitioner. In this statement the prosecutor spoke of how A6 Detective Purdy had been contacted by a young man during a canvas of the area where the crime had occurred. Counsel for petitioner objected to this state- ment as referring to inadmissible hearsay. A bench conference was held where the court was informed that this young man had provided the police with information leading them to the resi- dence of the petitioner. The prosecu- tion further states that the two inves tigative police officers had refused to reveal the identity of the witness to either the prosecutor or the peti- tioner. The prosecutor maintained he would only inform the jury of "wnat the A7 detectives did" based on their conver- sations with the young man, but he would 4 not adduce those conversations for the jury or the fact that young man had directed the officers to the petitioner's residence, The court ruled that the pro- secutor would be permitted "to inquire of the officer simply as a result of his in- vestigation what did he do." This ques- tioning could refer to the presence of a bystander at the scene of the crime who left some kind of notation in the offi- cers' car which prompted the police to further investigate the area. During direct examination of the police officers, testimony was eli- cited, over objection, that the offi- cers had met with a young male in the A8 vicinity of the robbery and that they had driven with the young man to the area of 1840 N.W. 60th Street (the petitioner's address). NMDuring closing argument, the prosecutor referred to the meeting be- tween the police and the unidentified young man in the following manner: Mr. Goldstein: He testi- fied he went to 1840 North- west 60th Street, and as you remember later on, that is where the Defendant Lives. He testified that he got out of the car, and he con- ducted an investigation on the scene there, that he went back to his office, and he made out this photo display, and put the photograph of Michael Hutchins in the photo display, and detective went to the hospital .... * + * * * * AY Then afterwards the detec- tive got out a warrant; went to the State Attorney's Of- fice; went to a judge; got a warrant for Michael Hutchins' arrest: went back to that address, and where was the address? 1840 Northwest 60th SEESOS wicc The prosecutor went on to explain the absence of the unidentified witness by saying "[a] crime of this nature creates fear" and that "poeple who have the fear do not want to get involved * * * [t]hey do not want to physically face the accused." The prosecutor then urged the jury "not only to rely on what you have heard here,” which he described as "the tip of the iceberg,” but "to con- sider all the circumstances involved in this crime.” Petitioner asserts that as a result of the introduction into evi- dence of the substance of statements A10 attributed to an unidentified and un- disclosed informant, and the reliance upon those statements as evidence of the guilt of the defendant, violated peti- tioner's right to confrontation under the sixth amendment to the United States Con- stitution. In this case, it is clear from the record that an anonymous informant con- tacted the investigating officers and in- formed them that he knew who had com- mitted the crimes. He told the officers the name and address of the assailant. However, for whatever reasons, this in formant refused to testify at the defen- dant's trial and the investigating offi- cers refused to name the informant to both the prosecution and the defense. The prosecutor's knowledge of this All information placed him in a diffi- cult position. He zealously attempted throughout the trial to place into evi- dence that there existed an eyewitness informant. The trial court attempted to allow portions of this evidence in under the theory that the officers were enti- tled to testify as to their investigative efforts. However, in closing argument the prosecutor could no longer withstand the temptation to spell out for the jury the existence of this anonymous infor- mant. In doing so, the prosecutor, in essence, informed the jury that there existed an eyewitness to this crime who accompanied the police to the residence of the defendant, but who refused to tes- tify out of fear of retribution. This situation was aptly described by the Al2 prosecutor as "a problem for everybody." Indeed, this court agrees that it is a problem of monumental concern when there is a witness who could assist the jury in its truthfinding process, but is afraid to testify. Reference to such a witness' statements, however, is inadmissible under the constitution. Here, the prose- cution gave in to the temptation to pro- vide for the jury this inadmissible evi- dence. This violated the defendant's right to confront the anonymous, non-tes- tifying witness. The prosecutor violated the defendant's rights when he explained to the jury that this anonymous informant was afraid to testify, but that it was clear he was an eyewitness to the crime who had identified to the officers, the defendant as the perpetrator. Al3 The sixth amendment right of an accused to confront the witnesses against him or her is a fundamental right. Mutton v. Evans, 499 U.S. 74, %1 §.Ct. 210, 27 L.Ed.2d 213 (1970). Although we do not doubt the existence of this infor- mant, he was never present, nor did he testify at the trial. The purpose of a defendant's right to confront a witness who testifies against him or her is not only to allow the defendant a chance at cross-examination, but to allow the jury to observe, and judge the credibility of the witnesses. The Supreme Court sun- marized the importance of the confronta- tion clause when it stated: The mission of the Confronta tion Clause is to advance practical concern for the ac- curacy of the truth-deter mining process in criminal trials by assuring that ‘the Al4 trier of fact [has] a satis factory basis for evaluating the truth of the prior state- ment.’ Dutton, 400 U.S. at 89, 91 S.Ct. at 220, quoting California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.?7d 489 (1969). In analyzing a confrontation clause inquiry, the court must initially deter mine whether the out-of-court statements are within the hearsay rule. The trial court concluded and we agree that the statements elicited by the prosecutor of the investigating officers were hearsay. Although the officers’ testimony may not have quoted the exact words of the infor- mant, the nature and substance of the statements suggesting there was an eye- witness, and what he knew was readily inferred. See Favre v. Henderson, 464 Al5 F.2d 259, 362 (Sth Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed. 7d 193 (1972). Indeed, the violation became clear when the prosecutor in final argu- ment, urged the jury to draw the infer- ence that the witness knew who committed the crime but was afraid to come to court. A finding that the statements were hearsay does not necessarily require a finding that the confrontation clause has been violated. See e.g., Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.?d 213 (197%). To establish that the admission of the hearsay statements did not violate the confrontation clause, the prosecution must show that the out- of-court declarant is unavailable for trial and the statements bear a Al6 sufficient indicia of reliability to provide the jury with an adequate basis for evaluating their truth. Ohio v. Roberts, 448 U.S. 56, 62-66, 100 S.Ct. 2531, 2537-39, 65 L.Ed.2d 597 (1980). In this case neither of the above require- ments were established. The prosecu- tion's only answer to the nonproduction of the informant was that the investi- gating officers refused to identify the witness, Additionally, the prosecution provided no basis no evaluating the cre- dibility of the unnamed informant. Ac- cordingly, having not met either require- ment under Roberts, the admission of these statements violated the confronta- tion clause. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (*972); Hoover v. Beto, 467 F.2d 516 (‘Sth Al7 Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.?d 67? (1977). It is also a fundamental principle of trial practice that a prosecutor may not seek to obtain a conviction by pre- senting to the jury any evidence outside of the record. United States v. Vera, 701 F.7d 1349 (llth Cir.198”). The pro- secutor clearly went outside the record of this case when he explained to the jury that there was an eyewitness infor mant who told the police that Hutchins was the perpetrator of the crime. The trial court concluded, and we agree, that the prosecutor's reliance on the hearsay testimony in closing argument was such that a reasonable juror could have con- cluded only that the informant identified Hutchins as the perpetrator of the Als robber. The use of this testimony in closing argument and the easily drawn inferences therefrom, constituted hearsay and violated the confrontation clause, thereby denying Hutchins a fair trial. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (*98N)- see also Favre v. Henderson, 464 F.2d 359, 362 (Sth Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed 9d 193 (1972). The prosecution submits that even if the admission of the challenged state- ments and his reliance upor them in closing argument was error, it was harm- less because the petitioner was identi- fied at trial by the victim of the rob- bery. The standards for determining whether a constitutional violation is harmless are well established. tf there Al9 is "a reasonable possibility that the evidence complained of might have con- " tributed to the conviction,” the error is not harmless. Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, ll L.Ed.?d 17* (1963); see also Milton Wain- wright, 407 U.S. 371, 372-73, 92 S.Ct. 2174, 2175-76, 33 L.Ed.?d * (1972); Zilka v. Estelle, 529 F.2d 388, 390 (5th Cir.1976). Once a constitutional error is established, there is a presumption of prejudice and the burden is on the bene- ficiary of the error to prove beyond a reasonable doubt that the error did not contribute to the verdict. Zilka v. Estelle, 529 F.2d 388, 390 (5th Cir. 1976)- see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.?d 705 (1967). A20 In this proceeding, the prosecution has not carried its burden of persuading this court that the error was harmless. Although there was one in court positive identification of the petitioner, this identification was vigorously challenged and somewhat equivocal. There is a total absence of any corroborative testimony of the identity of Hutchins. However, we are also confronted with a procedural question of whether Hutchins sufficiently exhausted state remedies be- fore filing this habeas action. After Hutchins was found guilty at trial, he filed a timely appeal to the Florida ap- pellate court where his conviction was affirmed. Hutchins v. State, 349 So.2d 1237 (Fla.App.1977). The main issue pre- sented on appeal to the Florida appellate A21 court, as stated in petitioner's brief, was as follows: Whether the trial court erred in allowing prosecutorial comments regarding the inves- tigating officers’ encounters with an unidentified third person to pervade the entire trial, where the only purpose of this argument was to lead the jury to draw the imper- missible inference that this third person had identified the defendant as the perpe trator of the charged crime, but was afraid to testify in court. Petitioner subsequently filed a pro se motion for post conviction relief pur- suant to Rule 3.850 of the Florida Rules of Criminal Prosedure. This motion was denied and no appeal was taken. Peti- , tioner then filed a pro se petition for writ of habeas corpus in the federal dis- trict court. Four issues were raised in this petition: (1) denial of a speedy A22 trial; (2) exclusion of defense evi- dence: (%) suppression by the prose- cution of favorable evidence; and (4) the unconstitutional admission of hearsay testimony. The trial court dismissed the petition without prejudice concluding that only two of the four grounds raised had been exhausted. One of the two grounds held to have been exhausted was the claim of unconstitutional admission of hearsay testimony. Petitioner chose not to file any further petitions in ; state court. Rather, petitioner filed a second petition in the federal court al- leging three grounds for relief: (*) the trial court's denial of defense counsel's request to produce a witness; (7) the un- constitutional admission of hearsay tes- timony; (3) the unconstitutional failure A23 of the prosecution to disclose evidence favorable to the defense. Tn response to this petition, re- spondent filed a motion to dismiss, con- ceding that the first and second grounds presented by petitioner had been ex- hausted, but that the third ground had not been presented to the state court. Respondent further requested that peti« tioner state his intentions regarding the speedy trial claim which was presented in the first petition for habeas, but was not mentioned in the second petition. The petitioner filed an election of remedies forever waiving his speedy trial claims. Petitioner then filed a memoran- dum of law in support of his petition, proceeding only on the two claims which : 2 : A24 had been exhausted; (1) the unconstitu- tional admission of hearsay evidence; and (2) the trial court's denial of the pro- duction of witness. These two claims, as presented in petitioner's memorandum to the court were stated as follows: 8A. The exclusion by the trial court of relevant and material exculpatory evidence offered by petitioner, in violation of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. B. The admission by the trial court of incriminating out- of-court statements an un- identified and undisclosed informant, in violation of the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. In response to this memorandum, the respondent realized that the concession A25 that the claim of unconstitutional admis- sion of hearsay had been exhausted was erroneous. Respondent contended that al- though it was clear from this final peti- tion that Hutchins was raising a confron- tation clause claim, he had never pre- viously raised this claim in the state courts. Rather, petitioner had presented only a hearsay claim. The words confron- tation clause had not been used by peti- tioner in any of his prior petitions in state or federal court and, therefore, according to the respondent this issue had either been waived or must be as- serted in the state court prior to being considered by the federal court. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 1..Ed.2d 783 (1987). The magistrate concluded that the confrontation clause claim was properly A26 before him and that the respondent “ha[d] failed to present an acceptable or justi- fiable excuse for its failure to pre- viously assert these procedural claims." The magistrate further concluded that the admission of the hearsay testimony and the prosecutor's comments in closing ar- gument referring to the testimony about the anonymous informant violated peti- tioner's rights under the confrontation clause of the sixth amendment. Accord- ingly, the magistrate recommended that the writ of habeas corpus be granted. The district court adopted this recommen- dation. Respondent argues that the confron tation clause claim raised by Hutchins in his present petition was never presented to the Florida Courts and, therefore, the A27 issue had been either waived or must yet be exhausted under Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 78% (1982) and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Respondent contends that the petitioner, on direct appeal, raised the issues of the admission of hearsay evidence and prosecutorial misconduct, not a sixth amendment confrontation clause claim. The Supreme Court has mandated that when there has been a procedural default which bars state litigation of a consti- tutional claim, a state prisoner may not subsequently obtain habeas relief absent a showing of cause and actual prejudice. Pa) Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1572, 71 L.Ed.?d 7%” (1982); see Wainwright v. Sykes, 433 U.S. 72, 97 A28 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The failure to abide by a state procedural rule in preserving an error for appeal or in asserting that error on appeal bars federal habeas review of the claims not presented to the state courts. Ford v. Strickland, 696 F.2d 804, 816-17 (llth Cir.198%); see also Engle v. 'saac, 456 U.S. 107, 102 S.Ct. 19558, 71 L.Ed.2d 7°* (1982). The issue presented to us is whether there existed a procedural de- fault in this instance. The trial record is replete with ob- jections by defense counsel to the testi- mony regarding the out-of-court state- ments of the unidentified informant. Al- though the phrasing of the issue on di- rect appeal did not use the words "con- frontation clause,' the appeal clearly A29 presented the problem of allowing and urging the jury to infer that an unnamed non-testifying witness had identified the petitioner. The fifth circuit has held that objectior on hearsay grounds is suf- ficient to present a state court with a subsequently raised federal constitution confrontation clause claim. Thomas v. Estelle, 582 F.2d 939, 941 (5th Cir.1978). The applicable law requires that a habeas corpus petitioner present "the substance of a federal habeas corpus claim" to the state courts. Pickard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). However, it is not required that the petitioner present book and verse on the federal constitution. Id. We are mindful of respondent's citation to Anderson v. Harless, U.S. A30 102 S.Ct. 276, 74 L.Ed.2d 3 (1982), for the proposition that the petitioner must couch his claim so as to allow a state court to rule on any applicable consti- tutional grounds. The Court in Harles, however, still focused on the premise that it is the substance of the claim that the court looks to in analyzing whether a federal claim has been voiced. We concluded that the issue, as presented on direct appeal, albeit obliquely stated, did sufficiently alert the state court to a confrontation issue. The substance of petitioner's claim was that the prosecution obtained an unfair advantage by effectively introducing into evidence the out-of-court statements of the unidentified informant. The prosecu- tion then relied upon those statements as A31 evidence of the petitioner's guilt. This is exactly what the confrontation clause is designed to prohibit. See California v. Green, 399 U.S. 149, 157-59, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 721-22, 88 S.Ct. 1318, 1320-21, 20 L.Ed.2d 255 (1968):- limited States v. Ragano, 476 F.2d “1. 414-15 (Sth Cir.1973). The Florida appellate court affirmed petitioner's conviction without any writ- ten opinion. It is, therefore, presumed that the court addressed petitioner's claim and rejected it. Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed."d 58 (1978); Carr v. State of Alabama, 586 F.2d 462, 464-65 ‘Sth Cir 1978), We find that the con- frontation issue was presented to the A32 state appellate court and the issue has been sufficiently exhausted. Although we have concluded that pe- tioner's federal habeas claim is properly before this court, we do not condone the manner in which it was presented. The mere raising of a hearsay claim is not the automatice equivalent of raising a confrontation clause claim, Although the two principles may have stemmed from the same roots, they have never been equated. See Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 713 (1970); United States v. Thevis, 665 F.2d 616, 632 (Sth Cir. Unit B. 1982). Exhaustion of state remedies is not simply a proce- dural mechanism for determining a state prisoner's ability to enter the federal court system. Rather, exhaustion was A33 designed to ensure that state courts have the initial opportunity to determine a defendant's rights under both state and federal law. See Engle v. Isaac, 456 U.S. 107, 102 §.Ct. 1558, 71 L.Ed.2d °° (1982). The state possesses the primar~ authority to define and enforce criminal laws, as well as the responsibility of vindicating constitutional rights. Fed eral intrusion into the state court sys tem frustrates the State's power to pun- ish offenders in accordance with the law. Id. 102 S.Ct. at 1571; see Schneckloth v. Bustamonte, 412 U.S. 218, 263-65, 93 S.Ct. 2041, 2066-67, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). Accordingly, when a criminal defendant perceives a constitutional error during the course of the trial, it is defense A34 counsel's responsibility to raise the error both at trial and on appeal in clear and forthright terms thereby alerting the state to the perceived error. Tt is this court's conclusion that petitioner did sufficiently alert the state court to his confrontation clause claim, despite the inartful wording of his brief. Because we conclude that this case is properly before us and because there was a clear violation of peti tioner's rights to confrontation, we AFFTRM the grant of the writ by the trial court. A35 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 83-5256 MICHAEL HUTCHINS, Plaintiff-Appellee, versus LOUIE L. WAINWRIGHT, Defendant-Appellant. Appeal from the United States District Court for the Southern Yistrict of Florida A36 ON PETITION FOR REHEARING ( NOV 2 1983 ) Before HILL, KRAVITCH and HENDERSON, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied. ENTERED FOR THE COURT: JAMES C. HTLL : UNITED STATES CIRCUIT JUDGE A37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 82-0420-CIV-JE MICHAEL HUTCHINS, Petitioner, =: vs. : ORDER AND INDGMENT LOUIE L. WAINWRIGHT, as as Secretary, Depart- ment of Corrections, State of Florida, Respondent. For the reasons stated in the Report of the Magistrate, and upon review of the file, it is now ORDERED: That the Writ of Habeas Corpus is granted, and petitioner is discharged from custody unless the State of Florida conducts a new trial within sixty (4%) days from the date of this Order. A38 In Miami, Florida, this 1 day of April 1983. ALCEE L. HASTINGS UNITED STATES DISTRICT JUDGE Copies to: Elliot H. Scherker Assistant Public Defender 1351 NW 12th Street Miami, FL %33125 Penny H. Hershoff Assistant Attorney General 491 NW Second Avenue Miami, FL 33128 A39 UNITED STATES DISTR'CT CORT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO. 82-420-Civ-ALH MICHAEL HUTCHINS, Petitioner, -ve- ORNER DENYING STAY LOULE L. WAINWRIGHT, as Secretary, Depart- ment of Corrections, State of Florida, Respondent. / . “HIS CAUSE comes before the Court upon Respondent's Motion for a stay of further proceedings in this cause pending resolution of the appeal which has been filed with the United States Eleventh Circuit Court of Appeals, or alternative- ly for an enlargement of the time within A40 which the State of Florida must retry the Petitioner. Having review the record in this case, having considered Respondent's Mo- tion, and being otherwise duly advised in the premises, it is hereby. ORDERED AND ADJUDGED that Respon dent's Motion for Stay of Further Pro ceedings Pending Appeal is DENIED. The Court will, however, allow the State of Florida ninety (90) days from the date of this Order within which to retry the Pe- titioner. DONE AND ORDERE™ in Chambers this 18th day of April, 1983. KLCEE-L> HASTINGS — UNITED STATES DISTRICT JUDGE A41 Copies furnished counsel: Elliot Scherker Penny Hershoff Brill A42 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 78-3264-CIV-NCR MICHAEL HUTCHINS, Petitioner, -vs- : ORDER OF DISMISSAL M. K. SAWYER, Respondent. Michael Hutchins has filed a pro se Petition for Writ of Habeas Corpus pur- suant to 28 U.S.C. Section 2254,attacking a conviction for robbery and of commit- ting assault with the intent to commit second degree murder entered on April 73, 1976 after a jury trial in Case No. 75-7951 in the Circuit Court of the Ele- venth Judicial Circuit, at Dade County. Hutchins is currently serving a twenty ae A43 (20) year term on the robbery convic- tion and a ten (10) year term on the assault conviction, the latter sentence to run consecutively with the sentence imposed for robbery. Hutchins is in- carcerated at the Brevard Correctional Institutional, at Sharpes, Florida. For its consideration with this pe- tition, the Court has the Respondent's response to an order to show cause, the briefs filed on appeal, and a transcript of the jury trial. | Hutchins presents four grounds for relief in this petition, as follows: ae The denial of the right to a speedy trial. Ze The conviction was obtained by the unconstitutional failure of the court to disclose evidence favorable to the defendant. 36 The conviction was obtained by the unconstitutional failure A4S4 of the prosecution to disclose evidence favorable to the defendant. 4. The conviction was obtained by the court's unconstitutional act of letting hearsay evidence in, which was only facorable to the prosecution. Hutchins raised the substantial equivalent of numbered issues 2 and 4 on direct Appeal to the Third District Court of Appeal of Florida which confirmed his conviction. Hutchins v. States, 349 So.2d 1737 (Fla. 3d DCA, 1977). A subse- quent state motion to vacate raised issue 1, the denial of the right to a speedy trial. But Hutchins failed to appeal the denial of the motion to vacate to any state appellate court. It is evident that although Hutchins has exhausted state remedies as to two of the four issues raised in the petition, A45 he has not exhausted his state remedies as to issue number 1, the denial of the right to a speedy trial, nor issue number 3, the failure of the prosecution to dis- close evidence favorable to the defen- dant. To avoid piecemeal litigation, the Fifth Circuit Court of Appeal has consis- tently required that state remedies be exhausted as to all issues raised in a federal habeas corpus petition. Burroughs v. Wainwright, 454 F.2d 1165 (Sth Cir. 1973)- Meachem v. Beto, 451 F.2d 187 (Sth Cir. 1971); Garrett v. State of Texas, 435 F.2d 709 (‘Sth Cir. 107%), Tn light of the above, this Petition for Habeas Corpus is DISMISSED without prejudice so that Petitioner may exhaust A46 his state remedies: and, it is hereby so, DONE AND ORDERE” at Miami, Florida, this 24th day of Sept, 1979. cc: NORMAN C. ROFTTGER UNITED STATES DISTRICT JUDGE Mr. Michael Hutchins, #053170 P. O. Box 340 Brevard Correctional Institution Sharpes, Florida 32959 Ms. Maragrita Esquiroz Assistant Attorney General 401 N. W. 2nd Avenue, Suite 820 Miami, Florida 33128 A47 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 82-0420-Civ-JE MICHAEL HUTCHINS, Petitioner, vs. : REPORT OF UNITED STATES LOUIE L. WAINWRIGHT, : MACISTRATE as Secretary, Depart- ment of Corrections, State of Florida, Respondent. In March, 1982, Michael Hutchins filed a pro se Petition for Writ of Habeas Corpus, 28 U.S.C. 2254!. Petitioner alleges that his custody, under a judgment by the Circuit Court of the Eleventh ‘'udicial Circuit of Florida, Ifhereafter the cause was re-assigned to me, and Mr. Elliot Scherker entered his appearance as petitioner's counsel. —— Pree a A48 on April 15, 1976, for the offenses of armed robbery and assault with intent to commit second-degree murder, is unlawful under the Constitution of the United States. Currently in the custody of resspondent, he is serving consecutive sentences of 20 and 10 years' imprison- ment. 1 make this Report pursuant to 28 U.S.C. §636(b)(1)(B), and Rules 8 and 10 of the Rules Governing Section 2254 Cases in United States District Courts. Petitioner has raised two issues: *) that the exclusion by the state trial court of evidence offered by petitioner at trial violated the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amend ment; and 2) that the admission into ue A49 evidence of the substance of incrimina- tory statements attributed to an unnamed informant, and the reliance by the pro- section upon those statements as evi- dence of guilt, violated the Confronta- tion Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. In my view the first ground does not state a claim upon which peti- tioner should receive habeas corpus re- lief2 . However, I find that peti- tioner is entitled to relief on the second ground: the introduction into evidence of, and argument upon, out-of- court statements attributed to an 2The Court thereby makes no finding that the evidence was properly excluded. On re-trial, the same proffer may well receive admission. ' simply decline to find that its exclusion was error of Federal Constitutional magnitude. A50 unidentified informant. PROCEDURAL ISSIIES Petitioner was found guilty by a jury of armed robbery and assault with intent to commit second-degree murder on April 15, 1976. The state trial court adjudicated guilt on that date, and im- posed sentence on April 23, 1976. A timely appeal was taken to the Florida Third District Court of Appeal which issued it decision, affirming the judg- ment and sentence without a written opinion, on August 9, 1977. Hutchins v. State, 349 So.2d 1237. On December 12, 1977, Petitioner filed a pro se motion for post-conviction relief, Rule 3.850 of the Florida Rules of Criminal Procedure. The motion was denied on January 7, 1978. No appeal was A5l taken. Petitioner thereafter filed a pro se petition for writ of habeas corpus in this Court. It was denied without pre- judice on September 24, 1979. The pre- sent petition was filed on March 2, 1982. Respondent's memorandum of law filed on November 22, 1982, asserted that peti- tioner's confrontation claim is not pro- perly before this Court. Specifically, respondent claims that this issue was not properly presented to the state appellate court on petitioner's direct appeal. From this premise, respondent argues that petitioner is either barred from present ing this issue on federal habeas corpus due to a state procedural default, or has not fully exhausted his state remedies. The parties agree that petitioner cannot re-assert his confrontation claim in the A52 state courts, becasue the issue is, under Florida law, properly cognizable on direct appeal and therefore not properly raised in state post-conviction proceed- ings. See Adams v. State, 380 So.2d 423 (Fla. 19°°). Accordingly, the claim must be deemed "exhausted", whether or not it was actually presented to the state courts in the first instance. Engle v. Isaac, «U.S. ___,, 102 S.Ct. 1558, 1570 n.28 (°982). The threshhold question, then, is whether petitioner should, as respondent claims, be forever barred from invoking the habeas corpus jurisdiction of this Court. The Court finds that the confron- tation claim is properly presented here for two reasons: ‘') respondent is estopped from seeking a dismissal on this ground; 2) the claim was sufficently pre- sented to the state courts to satisfy the requirements of Isaac, and Wainwright v. Sykes, 433 U.S. 72 (1977). In his first petition in this Court, Case No. 78-3274-Civ-NCR, petitioner raised four claims: 1) the denial of a speedy trial; 2) the failure of the state trial court to disclose favorable evi- dence; and 4) the admission of hearsay evidence at his trial. The order of dismissal entered by Judge Roettger on September 24, 1979, states in pertinent part: Hutchins raised the sub- stantial equivalent of num- bered issues 2 and 4 on direct appeal to the Third District Court of Appeal of Florida which [affirmed] his conviction. A subsequent state motion to vacate raised issue 1, the denial of the right to a speedy trial. But A54 Hutchins failed to appeal the denial of the motion to vacate to any state appellate court. Tt is evident that al- though Hutchins has exhausted state remedies as to two of the four issues raised in the petition, he has not exhausted his state remedies as to issue number 1, the denial of the right to a speedy trial, nor issue nun- ber 3, the failure of the prosecution to disclose evi- dence favorable to the defen- dant. The Court accordingly dismissed the peti- tion without prejudice. Petitioner did not file any further motions or petitions in the state courts. The present petition, filed on March 2, 1982, raised three claims: 1) the exclu- sion of proferrred defense testimony by the state trial court; 2) unconstitu- tional admission of hearsay testimony; and 3) tre failure of the prosecution to A55 disclose favorable evidence. Respon dent's motion to dismiss the petition on July 10, 1982, conceded that petitioner had raised "the [substantial] equivalent of two of the [three] grounds which he presently raises in this federal habeas corpus petition, that is, ground (1), the exclusion of a [defense] witness on the basis that his testimony was irrelevant, and ground (2), the admission of hearsay evidence at his trial." Respondent sought a dismissal without prejudice on the ground that petitioner had not pre- sented the third claim (failure to dis- close favorable evidence) to the state courts, and further sought a declaration from petitioner regarding his intentions as to his speedy trial claim, raised in his first petition but not by the second. A56 The Court thereafter permitted state appellate counsel for petitioner to enter an appearance on his behalf, and directed counsel to file a statement of the grounds upon which petitioner intended to proceed in this Court. Counsel there- after filed a notice of election of reme- dies, advising the Court that petitioner would proceed upon the two grounds which had been presented to the state courts, and would abandon the remaining claims alleged in the two petitions. Tn a responsive memorandum of law filed on November 22, 1982, pursuant to the Court's Order of October 25, 1982, respondent first raised the two proce- dural claims noted above. The Court finds that respondent has failed to pre- sent an acceptable or justifiable excuse A57 for its failure to previously assert these procedural claims. Both the exhaustion doctrine em- bodied in 28 U.S.C. §2254(d) and the waiver rule of Isaac and Sykes are policy rules, grounded upon well recognized con- sideration of federal-state comity. See Engle v. Isaac, supra, at 1571-72; Galteiri v. Wainwright, 582 F.2d 348, %54 (Sth Cir. *“~ ). It is accordingly well established that a custodian in a habeas corpus proceding may be estopped from asserting, or be held to have waived, such procedural objections to the con- sideration of the merits of a prisoner's claims. See Messelt v. Alabama, 595 F.2d 2747, 250 (Sth Cir. 1979); Houston v. Estelle, 569 F.2d 372, 376 (5th Cir. 1978); Collins v. Estelle, 474 F,2d 988, 99 (Sth Cir. 1973). A58 The Court finds that the Order of dismissal entered by Judge Roettger on September 24, 1979, constitutes a final judicial determination that the substan- tial equivalent of the present confronta- tion claim was presented to the state courts and that state remedies were pro- perly exhausted as to this claim. The Court therefore concludes that respondent is estopped by that ruling from reliti- gating this issue in this proceeding un- der the doctrine of collateral estoppel, as applied in both civil and criminal cases. See Ashe v. Swenson, 397 U.S. 436, 443-44 (1970)- Aerojet-General Cor- poration v. Askew, 511 F.?d 710, 715 (5th Cir. 1975), cert.denied, 423 U.S. 837 (1975): McDonald v. Wainwright, 493 F.°d 204. 207 (Sth Cir. 1974) Rankin v. State A59 of Florida, 418 F.2d 482, 486 (5th Cir. 1969), cert.denied, 397 U.S. 1039 (197%). The Court further finds that the failure of respondent to raise these de- fenses prior to the belated assertion in this proceeding, after petitioner had justifiably and detrimentally relied upon the concession of respondent in his initial motion to dismiss that the sub- stantial equivalent of the confrontation claim had been presented to the state courts, both equitably estops respondent from raising his procedural defense, and constitutes a waiver. See LaRoche v. Wainwright, 599 F.2d 722, 724 (Sth Cir. 1979). The Court therefore concludes that respondent is barred from seeking a dismissal of the present petition. The Court further finds that the A60 substantial equivalent of the confron- tation claim was presented to the state courts, both at trial and on appeal. The trial record is replete with objections by defense counsel to testimony regarding the out-of-court statements of the un identified informant. The brief filed for petitioner in the state appellate court recites these objections. The issue presented on direct appeal to the state appellate court was: Whether the trial court erred in allowing prosecutorial comments regarding the inves- tigating officers’ encounters with an unidentified third person to pervade the entire trial, where the only purpose of this argument was to lead the jury to draw the imper- missible inference that this third person had identified the defendant as the perpe- trator of the charged crime, but was afraid to testify in court. The Fifth Circuit has held that A61 obections on hearsay grounds are suf- ficient to present to the state courts a subsequently-raised federal constitu- tional confrontation claim. Thomas v. Estelle, 582 F.2d 939, 941 (5th Cir. 1978). Applicable law requires a habeas corpus petitioner to present “the sub- stance of a federal habeas corpus claim" to the state courts but does not require the citation of "book and verse on the federal constitution.'" Picard v. Connor, 404 U.S. 270, 278 (1971) (cita- tions omitted). The recent decision in Anderson v. Harles, U.S. _, 102 S.Ct. 276 (1982), upon which respondent relies, reaffirms the principle that the sub- stance of a federal habeas corpus claim must first be presented to state courts. I find that the substance of the A62 present claim was presented to the state courts by petitioner, both at trial and on appeal. The essence of the claim is that the prosecution obtained an unfair advantage by effectively introducing into evidence the out-of-court statements of the unidentified informant as ostensible non-hearsay, and then relying upon those statements as evidence of Petitioner's guilt. This is precisely what the Con- frontation Clause is designed to pro- hibit. See California v. Green, 399 U.S. 149, 157-59 (1970)- Barber v. Page, 390 U.S. 719, 721-27 (1968); Douglas v. Alabama, 380 U.S. 415, 418-19 (1965); United States v. Ragano, 476 F.2d 410, 414-15 (5th Cir. 1973)- Favre v. Hender- son, 464 F.2d 359, 361-64 (5th Cir. 1972): cert.denied, 409 U.S. 942 (1972). A63 The state appellate court affirmed petitioner's conviction without written opinion. It is therefore conclusively presumed that the court addressed his claim and rejected it. Smith v. Digmon, 434 U.S. 332. 333-24 (1978); Carr v. State of Alabama, 586 F.2d 462, 464-65 (5th Cir. *978); Leslie v. Wainwright, 511F.Su pp. 753, 755 (M.D. Fla. 1981). I accordingly find that the state appellate court approved the prosecutor's reliance upon out-of-court statements as substan- tive evidence of guilt, rendering the present claim properly brought in federal habeas corpus. Moreover, * find that the state court's approval of the prosecutorial tactics employed in this case obviates any need for petitioner to re-exhaust his A64 confrontation claim and eliminates any procedural bars, even were his earlier failure to cite applicable constitu- tional provisions given any weight. While Engle v. Isaac, supra, holds that perceived futility of presenting a claim to the state courts will not excuse a failure to do so, 102 S.Ct. at 1572-73, the subsequent decision of the Fifth Cir- cuit in Henry v. Wainwright, 686 F.2d 311 (5th Cir. 1982), rendered on a remand for reconsideration in light of Isaac in Wainwright v. Henry, — U.S. _, 102 S.Ct. 2922 (1982), holds that the failure of counsel to repeatedly press a claim which a state court has rejected in the subject litigation does not bar federal intervention. 686 F.?d at 314 n.3. The Court finds that it would have been A65 futile, within the meaning of Henry, for counsel to have asserted error in the introduction of ostensible non-hearsay testimony before a court which approved the prosecutor's reliance upon that tes- timony as evidence of guilt. Thus, I find that Isaac does not bar considera- tion cf petitioner's claim in this proceeding. I accordingly conclude that peti- tioner's claim, first filed in this Court in 1978, is properly before the Court. Neither law nor equity justifies barring petitioner from receiving consideration of his constitutional claims. THE CONFRONTATION CLAIM The facts upon which the confronta- tion claim is based are reflected in the trial transcript, which is before the A66 Court. There is no dispute between the parties over the historical facts in this case. The charges against petitioner arose from a taxicab robbery on July 17, 1975. The only witness identifying pe- titioner as the robber was the driver. Petitioner's defense was misidentifica- tion; he challenged the in-court identi- fication by the driver at trial on the grounds that the driver had initially identified petitioner in a photographic lineup while the driver was hospitalized, suffering from wounds inflicted during the crime, and under sedation. ™n his opening statement, the prose- cutor referred to an encounter between one of the investigating officers, Detec- tive Purdy, and a young black male. Counsel for petitioner objected on A67 hearsay grounds. The prosecutor proferred to the court that he did not intend to elicit the details of the con- versations between the detective and this individual, but was "going to tell the jury here what the detectives did, based on any conversations they may have had with this unknown young black male." The prosecutor also advised the court that the officers received information from this individual under a promise not to reveal his name, and had declined to give the prosecutor any identifying information. The court ruled that the prosecutor could advise the jury of the existence of the individual and the actions of the of- ficers. The prosecutors continued his opening statement, and told the jury that A68 the officers had further contacts with the unidentified individual, had gone to a particular address, and had prepared a photographic array from which the victim identified petitioner. The court denied a motion for mistrial by counsel for pe- titioner, although advising the prosecu- tor that he had acted "contrary to the Court's previous ruling as to what you are able to go into." The two detectives, Purdy and Shipes, testified at trial to their con- tacts with the unidentified informant. Purdy testified that he and Shipes had been investigating the area where the in cident ocurred when they were approached by a young black male with whom they A69 conversed. Over renewed objections by counsel, the court permitted the witness to testify that this individual had placed a piece of paper in the police vehicle. A subsequent motion for mis- trial was denied by the court. Detective Shipes then testified, over objection of counsel, that he found the piece of paper and returned to the police station, where he made a telephone call. Shipes further testified that he and another officer met with the uniden- tified black man on the following day, drove with him to the area of 1840 North- west 60th Street, returned to the police station, obtained a photograph of peti- _tioner, and prepared the photographic ‘ lineup for the victim. The detective testified he subsequently obtained a A70 warrant for petitioner's arrest, and arrested him at his home. Renewed ob- jections to this testimony were over- ruled, and motions for mistrial were denied by the trial court. In his closing argument, the pro- secutor made extensive references to the contacts with the unidentified informant, as the following excerpts demonstrate: Mr. Goldstein: He testified he went to 1840 Northwest 60th Street, and as you re- member later on, that is where the Defendant lives. He testified that he got out of the car, and he conducted an investigation on the scene there, that he went back to his office, and he made out this photo display, and put the photograph of Michael Hutchins in the photo dis- play, and the detective went to the hospital.... * * * A71 Then afterwards the detective got out a warrant; went to the State Attorney's Office; went to a judge- got a war- rant for Michael Hutchins' arrest; went back to that address, and where was the address? 1840 Northwest 60th Street. * * * A crime of this nature creates fear; fear of the victim ... . [B]Jut crimes of this nature create violent fear and tremendous emotions for people who are involved and see these types of crimes. Especially, persons who might know persons that commit crimes like this. The become very fearful of what people that commit crimes of this type of nature might do to them, if they crossed them. It creates fear in the neighborhood: people that have to live with this violent nature: people who have the fear do not want to get involved with police officers, they do not want to cooperate with police offi cers, they certainly do not A72 want to cooperate with police officers, and if they coop- erate with police officers, they certainly do not want to physically face the accused; the Nefendant. It creates serious problems for every- body. Petitioner asserts that the police officers' testimony introduced the sub- stance of the informant's statements into evidence. The informant was thus a wit- ness against him, and his inability to confront and cross-examine the informant violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Pe- titioner also asserts that the closing argument of the prosecutor further preju- iced him at trial, as the prosecutor urged the jury to accept as true the out- of court statements of the witness be- cause of his attributed fear of coming forward. A73 I find that these contentions have merit. The introduction of the substance of the informant's statements, and the manner in which these were used at trial, violated the Sixth and Fourteenth Amendments. The first aspect of a confrontation inquiry is whether out-of-court state ments are within the hearsay rule. I find that the prosecution, despite eschewing an intent to elicit the state- ments of the informant, succeeded in pre- senting the statements to the jury. The police officers testified, in essence, that they had been contacted by the in- formant, that they had a conversation with him, and that as a result of this conversation they drove to a specific address, 1840 Northwest 60th Street, A74 where they obtained additional information and then prepared a photographic lineup which included a picture of petitioner. One of the officers further testified that he had thereafter obtained an arrest war- rant, and had arrested petitioner at the same location, 1840 Northwest 60th Street. I find that a reasonable juror could only have concluded that the infor- mant identified the petitioner as the perpetrator of the robbery, and directed the officers to his home. This testimony was hearsay. Favre v. Henderson, 464 F.2d 359 ("th Cir. 1977), cert.denied, 409 U.S. 947 (197%). In Favre, as in the present case, the prosecution presented testimony of a po- lice officer who investigated the robbery with which the defendant had been A75 charged; the trial court permitted the officer to testify that he had first sought to arrest the defendant after having had contact with two confiden tial informants. As in the present case, the witness in Favre did not quote any statements made by the informants. Id. at 360-61. The Fifth Circuit held that the tes- timony was hearsay: Whether offered by the prose- cution to establish identifi cation, guilt, or both, the testimony, when considered in light of its logical in- ferences, is hearsay. ‘'Hear- say evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters as serted therein, and thus resting for its value upon the credibility of the out- of-court asserter.' Although the officer never testified to the exact statements made A76 to him by the informers, the nature of the statements .. was readily inferred. [citations omitted] 464 F.2d at 362. A finding that the testimony in this case was hearsay does not require a finding that the Confrontation Clause was violated. See e.g., Dutton v. Fvans, 400 U.S. 74, 89 (*97°), That Clause imposes two restrictions on the admission of hearsay testimony: 1) the prosecution must establish that the out-of-court de- clarant is unavailable for trial; and 2) if this predicate is satisfied, it must be demonstrated that the statements bear sufficient “indicia of reliability” so as to provide the jury with an adequate basis for evaluating its truth. Ohio v. Roberts, 448 U.S. 56, 62-66 A77 (1980). I find that the record in this case demonstrates that neither of these requirements was met, and accord- ingly that the introdu: “ion of the hear- say testimony violated the Confrontation Clause. First, there was no showing that the witness was unavailable. The prosecu- tor's only statement was that the police officers were unwilling to identify the witness. That the prosecutor did not consider these statements conclusive is established by his representation to the court that counsel for petitioner had the right to seek disclosure of the witness. The state attorney's power to compel pro- duction of such evidence is provided by Florida law. See Fla.Stat. §27.04, (1981). There is no showing on this A7 record that the officers would have resisted either the subpoena power of the prosecutor or a direct order of the trial court. Accordingly, I find that the pro- secution failed to sufficiently demon- strate that the witness was unavailable, and the introduction of the out-of-court statements through the police officers violative the Confrontation Clause. See Mancusi v. Stubbs, 408 U.S. 204, 212-216 (1972)- Barber v. Page, 390 U.S. 719, 722-724 (1968). I also find that the record is devoid of any "indicia of reliability” of the statements, even if the unavailabi- lity of the witness had been demon- strated. The law requires that such indicia appear of record. Hoover v. Beto, 467 F.2d 516, 533 (Sth Cir. 1972), A79 cert.denied, 409 U.S. 1086 (1972). No basis for evaluating the credibility of the unidentified informant appears on this record. The conclusion of the Court in Favre v. Henderson, supra, is directly applicable: The mission of the Confronta- tion Clause is to advance a practical concern for the accuracy of the truth-deter- mining process in criminal trials by assuring that ‘the trier of fact [has] a satis- factory basis for evaluating the truth of the prior state- ment.’ In the present case, testimony was admitted which led to the clear and logical inference that out-of-court declarants believed and said that Favre was guilty of the crime charged. The informers were not identified and were net subject to cross-exami- nation. The trier cf fact had absolutely no ‘satisfac- tory basis for evaluating the A80 truth of the prio. state- ment. [citations omitted] 464 F.2d at 364. I find this holding to be con- trolling in the present case. In this proceeding, respondent's last line of defense is that any error was harmless, because petitioner was identified at trial by the victim of the robbery. The standards for application of the constitutional harmless-error rule are well established. See Milton v. Wainwright, 407 U.S. 371, 372-73 (1972); Harrington v. California, 395 U.S. 250, 253-54 (1959); Zilka v. Estelle, 529 F.2d 388, 390 (Sth Cir. 1976)- Blackburn v. Cross, 510 F.2d 1014, 1019 (5th Cir. 1975), cert.denied, 421 F.2d 970 (1975). Applying these standards, the Court finds A81 that the error in this case was not harmless. In Favre v. Henderson, supra, in which there was also one positive in- court identification (bolstered by three other identification witnesses, who pointed the defendant with varying de- grees of certainty’, the court rejected a harmless-error assertation as follows: Considering the disputed tes- timony in context, we cannot conclude that its admission was harmless ‘beyond a rea- sonable doubt.’ The testi- mony, with its inference on the issues of identification and built, may well have tipped the scales toward a guilty verdict. Without the disputed testimony, the pro- secution had a questionable case, based as it was on two tentative identifications based on build, hair color, and complexion, one dubious positive identification, and one vigorously challenged positive identification. With the disputed testimony A82 the prosecution's case was far stronger. This testimony added two inferred ‘reliable’ identifications, and, inher- ently, two assertions as to guilt. It cannot be said 'T am akg loss to understand how any normal jury, as must assume this one to have been, could be led to believe, let alone be influenced by ]the wit- ness' testimony as to the out-of-court declarant's statements]. The testimony does not ‘'[fade] into prac- tical and legal insignifi- cance.’ Nor are we dealing here with ‘gossamer possibi- lities of prejudice to a de- fendant [which serve] to’ nullify a sentence .... and set the guilty free.’ The error is not ‘harmless beyond a reasonable doubt.’ [citations omitted] 464 F.?d at 366-67. In the present case, the single eyewitness identification was also vigo- rously challenged, on grounds which I cannot find to be unreasonable or A83 facially unpersuasive to a jury. In addition, there is also a total absence of any corroborative testimony, and the only legitimately-introduced testimony against petitioner was the victim's identification of him as the perpetrator; this, while certainly legally sufficient, cannot be deemed so overwhelming as to preclude every reasonable possibility that petitioner was unfairly prejudiced in the presentation of his defense by the hearsay evidence. I further find that the closing argument of the prosecutor, in which he in essence urged the jury to accept the out-of-court statements as true, and drew for the jurors the connection between the petitioner and the address to which the officers were directed by the informant, A&4 exacerbated the prejudicial impact of the testimony, eliminating any lingering pos- sibility that the jury would not have in- ferred that petitioner had been identi- fied as the guilty party by the infor- mant. The argument of the prosecutor was, standing alone, violative of the Sixth Amendment, and the prejudicial effect sufficiently egregious to preclude a harmless error finding. United States v. Ragano, 476 F.2d 410, 414-15 (Sth Cir. 1977), The introduction and rhetorical use of the hearsay testimony violated the Sixth and Fourteenth Amendments, de- priving petitioner of a fundamentally fair trial. I therefore recommend that the peti- tion for writ of habeas corpus be grant- ed, and that petitioner be discharged A85 custody unless the State of Florida af- fords him a new trial within 60 days from the date of the District Judge's Order. Pursuant to 28 U.S.C. §636(b)(1)(C) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts, the parties may file and serve written objections to this Report with The Honorable Joe Eaton, United States District Judge, within ten (10) days after being served with a copy of this Report. In Miami, Florida, February 24, 1983. PETER NIMKOFF PETER L. NIMKOFF UNITED STATES MAGISTRATE A86 Copies to: Elliot H. Scherker Assistant Public Defender 1351 N.W. 12th Street Miami, FL 33125 Penny H. Hershoff Assistant Attorney General 410 N.W. Second Avenue Miami, FL 33128 A87 IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 1977 CASE NO. 76-1197 MICHAEL HUTCHINS, ** Appellant, x Vs. x* THE STATE OF FLORIDA, xk Appellee. ** Opinion filed August 9, 1977 An Appeal from the Circuit Court for Dade County, Lenore Nesbitt, Judge. Bennett H. Brummer, Public Defender and Elliot H. Scherker, Assistant Public Defender, for appellant. A88 Robert L. Shevin, Attorney General and Margarita Esquiroz, Assistant Attorney General, for appellee. Before BARKDULL, HAVERFIELD and NATHAN, JoJe PER CURIAM. Affirmed, A89 CONSTITUTION AND STATUTORY PROVISIONS Amendment V of the Constitution of the United States provides that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentmet or in- dictment of a Grand ‘ury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI of the Constitution of - the United States provides that: In all criminal prosecu tions, the accused shall enjoy the right to a speedy A90 and public trial, by an im- partial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory pro- cess for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence, Amendment XIV of the Constitution of the United States provides: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty, or pro ° perty, without due process of law; nor deny to any person within its jurisdiction the A91 equal protection of the laws. Title 28, United States Code, Section 1257 provides: Final judgments or decrees rendered by the highest court of a State in which a deci- cision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the valid- ity of a treaty or statute of the United States and the de- cision is against its validity. (?) By appeal where is drawn in question the valid- ity of a statute of any state on the ground of its being repugnant to the Constitu- tion, treaties or laws of the United States, and the deci sion is in favor of its validity. (3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the valid ity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, trea- tiers or laws of the United States, or where any title, A92 right, privilege or immunity is specially set up or claimed under the Constitu- tion, treaties or statutes of, or commission held or authority exercised under, the United States. June 25, 1948, c. 646, 62 Stat. 92°, For the purposes of this section, the term “highest court of a State" includes the District of Columbia Court of Appeals. Title 28, United States Code, Section 2254, provides inter alia that: (a) The Supreme Court, Justice thereof, a circuit judge. or a district court shall entertain an applica- tion for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (b’ An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be A93 granted unless it appears that the applicant has ex- hausted the remedies avail- able in the courts of the State, or that there is either an absence of avail- able State corrective pro- cess or the existence of cir- cumstances rendering such process ineffective to pro- tect the rights of the pri- soner. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. A9G UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT OFFICE OF THE CLERK 56 FORSYTH STREET, N.W. ATLANTA, GEORGIA 30303 December 7, *°9R3 Penny H. Brill, Esquire Asst. Attorney General 401 Northwest 2nd Avenue, #820 Miami, FL 33128 No. 83-5256 - MICHAEL HUTCHINS -vs- LOUIE L. WAINWRIGHT, ET AL. (District Court No. 82-420-CIV-A'T”) MANDATE STAYED TO AND INCLUDING JANUARY 6, 1984 This court has this day granted a stay of issuance of the mandate to the date as shown above. If during the period of the stay there is filed with this office a notice from the Clerk of the Supreme Court that the party who has obtained the stay has filed a petition for the writ in that Court, the stay shall continue until final disposition by the Supreme Court. A95 Upon the filing of a copy of an order of the Supreme Court denying the petition for writ of certiorari, the mandate shall issue immediately under Rule 41, FRAP. Under revised Rule 19.1 of the Supreme Court, effective June 30, 1980, a request to certify the record prior to action by the Supreme Court on the petition for certiorari should not be made as a matter of course but only when the record is deemed” essential to a proper under- standing of the case by that Court. A copy of the opinion, judgment, or Rule 25 Decision, and denial of rehearing are still required by the Supreme Court to be incorporated as an appendix to your peti- tion. Enclosed are copies of the said documents which have been entered in this cause, Very truly yours, SPENCER D. MERCER, CLERK By: HENRIETTA BARNES Deputy Clerk Encls. cc: Elliot H. Scherker, Esquire A96 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 83-5256 MICHAEL HUTCHINS, Petitioner/Appellee, vs. LOUIE L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent/Appellant, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIFF OF RESPONDFNT/APPELLANT Nature of Preference Habeas Corpus, 28 U.S.C. $2254 JIM SMITH Attorney General Tallahassee, Florida A97 PENNY HERSHOFF BRILL Assistant Attorney General Ruth Bryan Owen Rohde Building Florida Regional Service Center 49* N.W. 2nd Avenue (Suite 820) ° Miami, Florida 33128 (305) 377-5441 A98 Il THE DISTRICT COURT ERRED IN FINDING THAT THE PETITIONER'S CONFRONTATION CLAUSE CLAIM HAD BEEN SUFFICIENTLY PRE- SENTED TO THE STATE APPELLATE COURTS, WHERE THE CLAIM WAS PRESENTED IN ONLY STATE TERMS, AND WAS FRAMED IN TERMS OF PREJUDICIAL PROSECU- TORIA’ COMMENTS, AND NOT IN TERMS OF A SIYTH AMENDMENT CONFRONTATION CLAUSE VIOLA- TION. The Respondent strenously submits that the district court erred in finding that the substantial equivalent of the confrontation claim was presented to the state appellate courts. Because the state appellate opinion was a per curiam affirmance without a written opinion, Hutchins v. State, 349 So.2d 1237 (Fla. 3d DCA 1977), this Court must look to the state appellate briefs to determine whether the substantial equivalent of the A99 confrontation claim was presented. The issue on direct appeal was framed as follows: Whether the trial court erred in allowing prosecutorial comments regarding the inves- tigating officers’ encounters with an unidentified third person to pervade the entire trial, where the only pur- pose of this argument was to lead the jury to draw the im- permissible inference that this third person had identi fied the defendant as the perpetrator of the charged crime, but was afraid to testify in court. See Exhibit "A", Point II on Appeal, at 11. In support of this allegation of error, the Petitioner cited state cases that admonished prosecutors from making comments that could not be reasonably inferred from the evidence or which was A100 inflammatory and calculated to raise passion or prejudice in the minds of the jury. See Exhibit "A", Brief of Appel- lant at 22-24. None of these cases con- tained any reference to any confrontation clause claims,’ 7aAdams v. State, 192 So.2d 762 (Fla. 1966) (comments by prosecution that equated victim of homicide to wives and relatives of jurors, and that defense counsel's statements "perverted and dis- torted things" and "violated his oath as a lawyer and human being "were unduly prejudicial and constituted error) - Goddard v. State, 143 Fla. 28, 196 So. (prosecutor's statements that defendant was "low down scoundrel" and "skunk" and there has never been an ounce of remorse in the "no good black heart of that scondrel"- although improper, held not reversible in light of overwhelming evidence); -lohnson v. State, 88 Fla. 461, 102 So. 549 (1974) (prosecutor's reference to the defendant that he “went out there for what cats and dogs fight for," and "is a brute", were reversible error): Richardson v. State, 335 So.7d 835 (Fla. Zth DCA 1976)(prosecutor's remarks that he "could have brought in a lot of police officers" and that case could have lasted A101 It is obvious that the actual gist of Petitioner's allegation of error was that the prosecutor's arguments were based on evidente not before the court at all and if it was a constitutional viola- tion, it was a violation of his rights not to be deprived of life, liberty or property, without due process of law under the Fifth Amendment of the United Footnote / (continued) longer constituted reversible error); James v. State, 334 So.2d 83 (Fla. 3d DCA 19/76) (prosecutor's remark that pushers infest other individuals with his disease of heroin although improper, was not so prejudicial as to require a mistrial); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA (prosecutor's remark that the state's key witnesses were "obviously able to convince the police of their truthfulness or they would have been the ones on trial was prejudicial error) Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975)(prosecutor's comment, con- cerning additional witnesses who could of been called were prejudicial in that they lead the jury to believe that there was other evidence). Al02 States Constitution. This can be deter- mined by reviewing the portions of the prosecutor's arguments emphasized by the Petitioner in his brief. The Petitioner was especially concerend with the prose- cutor's explanation as to why the young black male did not testify, and his request to the jury to not only rely on what they heard, but to consider all the circumstances. See Exhibit "A", Appel- lant's brief at 21, 23. Respondent sub- mits that if the Petitioner had intended to raise the issue in terms of a confron- tation clause violation, he most certain- ly would have done so. Petitioner was able to frame his first issue on appeal, that the trial court erred in excluding a defense witness, as a basis for a viola- tion of the Petitioner's due process A103 right to prepare and present a defense under the Sixth and Fourteenth Amend- ments to the United States Constitution. See Exhibit "A", Appellant's Brief at 12. Further evidence that the Petitioner did not raise the substantial equivalent of a confrontation claim in the state appellate court, is found by reviewing the state's brief. The state argued in its brief that the prosecutor properly argued the facts which were established at trial and which were reasonably in- ferred from the facts established. The state cited to the portions in the tran- script in which the two officers testi- fied about their contact with the young black male. See Exhibit "B", Appellee's Brief at 17-20. The state also argued that trial counsel "never moved for a A104 mistrial or asked the trial court to take any action during the prosecuting attor- ney's argument or at the conclusion thereof" thus, he did not properly pre- serve his assertions regarding the prose- cutorial arguments for appeal. See Exhibit "B", Appellee's Brief at 27. Thus, it is obvious that the state was not put on notice that the Petitioner was raising a violation of the confrontation clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amend- ment. Respondent submits that it is evi- dent that the Petitioner did not raise the substantial equivalent of a confron- tation clause claim in the state courts. Although, a hearsay objection may be sufficient to raise a confrontation issue A105 if raised in a confrontation posture, Thomas v. Estelle, 582 F.2d 939 (5th Cir. 1971) such an objection was not presented on the appellate level in the instant case. See Daye v. Attorney General of State of New York, 696 F.2d 186, 193 (2d Cir. 1982)(en banc). In Thomas v. Estelle, supra, the hearsay objection was made in terms that indicated that the defense counsel wished the witness to be brought down to the courtroom so he could question her. In the instant case, although the Peti- tioner's trial counsel objected to the testimony on hearsay grounds as well as complaining that he was never given an opportunity to discover the young black male's identity, Petitioner's appellate counsel chose to frame the issue on A106 appeal only in terms of what the prose- cutor said concerning the young black male and his reasons for not being a wit- ness, in his closing argument. Not only did Petitoner's appellate counsel not phrase the issue in terms of a confron- tation clause violation, he did not even allege that there was a violation of the hearsay rule.8 Respondent submits that the district court's finding that the substance of the confrontation claim was presented to the state appellate court is clearly in 8This is because at the time of the Petitioner's trial the officers’ tes- timony as to the manner in which they investigated the case, testifying what they did, pursuant to information (not related in court) received from the in- formant, was permitted in Florida as not being hearsay. Collins v. State, 65 So.2d 61 (Fla. 1953); Kirby v. State, 44 Fla. 81, 32 So. 834 (1902). A107 error. It is well established that under 28 U.S.C. $2254, a federal habeas peti- tioner is required to have provided that state courts with a "fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim. Picard v. Connor, 404 U.S. 270, 276-77 (1971). Furthermore, the habeas petitioner must have "fairly presented” to the state courts the "substance" of his federal habeas corpus claim. Picard v. Connor, 404 U.S. at 275, 277-78. It is not enough that all facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made. Anderson v. Harless, U.S. , 103 8.6. 25> srt (1982). The argument raised in federal court must be the substantial equivalent A108 of that presented to the state courts "to insure that the 'method of analysis’ was "readily available to the state court.” Santana v. Felton, 685 F.2d 71, 74 (3d Cir. 1982). Where a petitioner, on his direct appeal to the state appellate court, pre- sented his claims in state terms only, the petitioner has failed to give the state courts a fair opportunity to con- sider his federal claims of error. Gulliver v. Dalsheim, 687 F.2d 655, 657 (7th Cir. 1982); Santana v. Fenton, supra; Steele v. Taylor, 684 F.2d 1193, 1206 (6th Cir. 1982); Winfrey v. Maggio, 664 F.2d 550, 553 (5th cir. 1981); Hart v. Estelle, 634 F.2d 987, 989 (Sth Cir. 1981); Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir. 1980)- Conquest v. A109 Mitchell, 618 F.2d 1053, 1056 (4th Cir. 1980); Johnson v. Metz, 609 F.2d 1052, 1054 (2d Cir. 1979). Alleging lack of a fair trial does not sufficiently alert a state court to a contention that the trial court failed to comport with due process guarantees. Kirksey v. Jones, 673 F.7d 58, 59-49 (7d Cir. 1987); Thomas v. Wyrick, supra at 1054-1055. A habeas petitioner will not be deemed to have fairly presented his claim to the state courts though the prior state proceedings technically asserted the same constitu- tional deficieny, the same facts that are urged in the federal court, are used to support of a different legal theory. Hart v. Estelle, supra at 989. See also Picard v. Connor, supra (claim in state court that indictment was amended in such A110 a way as to violate the Fifth Amendment, was not sufficient to apprise the state scourts of a violation of the Equal Pro- tection Clause of the Fourteenth Amend- ment). Furthermore, a defendant's ci- tation to a state court decision predi- cated solely on state law will not be sufficient to fairly apprise a reviewing court of a potential federal claim mere- ly because the defendant in the cited case advanced a federal claim. Anderson v. Harless, supra, 103 S.Ct. at 278, n.3. The Respondent submits that where the Petitioner in his brief to the state appellate court presented the facts, but framed the issue on appeal in terms of prejudicial prosecutorial comments, and not in terms of whether the testimony of the police officers concerning the young All1 black male was hearsay and violated his right to confrontation, or even whether the prosecutors comments by themselves were hearsay or violated the petitioner's right to confrontation, the "substance" of his confrontation claim was not fairly presented to the state courts. The lack of citation to federal con- stitutional provisions and federal au- thority in the Petion [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1044%3A1. Public record. Not legal advice.