Opposition Brief — Kuhlmann v. Wilson

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In the

SUPREME COURT OF THE UNITED STATES

October Term 19685

HON. ROBERT J. HENDERSON, Superintendent,

Aabern Correctional Facility,

Petitioner,

-against~

JOSEPH ALLAN WILSON,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOSEPH ALLAN WILSON,

Pro Se Respondent

IDA C. WURCZINGER, ESQ.

3701 Connecticut Avenue, N.W.

Washington, D.C. 20008

(202) 363-1761

PHILIP S. WEBER, ESQ.

520 Madison Avenue

New York, New York 10022

(212) 888-6550

Of Counsel

4 | .

QUESTIONS PRESENTED

Respondent respectfully submits that, should the Court

Grant a writ of certiorari in this case, the issues presente

for review woulé be:

1. Were the incriminating statements obtained fror

Wilson by a secret government informant under circumstances

identical to those that were determinative in United States v.

Henry, 477 U.S. 264 (1980), “deliberately elicitec” by the

government under the test of United States v. Henry? The Court

of Appeals answered this question in the affirmative.

2. In view of the clear violation of Wilson's Sixth

Amendment right to counsel under the holding of Henry, was a

full review of the merits of Wilson's habeas corpus petition

required by the ends of justice? The Court of Appeals answeres

this question in the affirmative.

-i-

TABLE OF CONTENTS

pace

Table of Authorities........ TTL TTL TTT TT TP ee eT eee oowkil

Opinions Below......... cocccccccce Trrrrr res covccccsccccccced

Constitutional and Statutory ProvisionsS......ceeececccccecs 2

Pees GE Te Ge ccccccesccceccccceseescesececoceceess 3

A. The Robbery, Wilson's Arrest,

and His Arraignment.......... TIYTITVTITITTT YT TTT TTT Te 3

B. The State's Enlistment and Use

OS © DRRTOS FRG ccc ccccecccccoccecscessocese 4

Cc. Events Following Wilson's

BOGMeees GO GES OS Gases ccccccsccceccctccsceeescese 5

D. Wilson's Initial Application for

@ BEE GE BOSSSS COEHUS. ccccccvcccccsccccvcesscces €

E. Wilson's Current Application for

@ Writ of Habeas Corpus........ TrLTTTLLT TTL 7

DUMMOTY GE CRO ACGUMORE. ccccccccecescccscecsecesccocosccsoedl

ARGUMENT

THE COURT SHOULD DENY THE PETITION

FOR A WRIT OF CERTIORARI........200. Coc cccccccccovesecs 12

I. The Decision of the Court of Appeals

Is in Harmony with the Precedents

of This OO, ee |

II. The Court of Appeals Properly

Conducted a Review of the Merits of

Wilson's Application for Habeas

Corpus as Required by the Ends of

JUBCISE. ccccccccsccsesesccccccccececccscceccccseels

A.

The Court of Appeals Correctly

Determined That Review of

Wilson's Application Was

Reguired to Serve the Ends of

JUBCISR. ccccccccscccesccccccccccccccecececes 16

The Court of Appeals Decided

the Issues Raised by Wilson's

Application Consistently with

the Requirements of 28 U.S.C.

DS SESCCSD cccccsccccceccosonccescccceseseecceons

6 606666600 0060000S SSC ESSEC OOOO eS ebCeeOOEeeOeeCenn

-ii-

Tatle of Authorities

peace

Cases

Alforé v. North Caroling, 405 F.2€ 340 (4th Cir.

1968) 14, rev'd on other grounds, 400 U.S. 25 (1970)..... 19

Bass v. Wainwright, 675 F.26 1204 (llth Cir. 1982)........ 19

Brewer v. Williams, 430 U.S. 387 (1977)....... -8, 13, 18, 23

Cancino v. Craven, 467 F.2d 1243 (9th Cir. 1972).......... 19

Cuyler v. Sullivan, 446 U.S. 335 (1980) ...cceeeweenceveces 23

Fors v. Stricklané, 734 F.26 538 (llth Cir. 1984),

BEE*S, B2 Li. ES. 26 911 (1985) wc cece ee recccecreccccccvees 19

Hobbs v. Pepersack, 301 F.26 875 (4th Cir. 1962).......... 19

Massiah v. Unitee States, 377 U.S. 201

SPOS) coves ccecesevesssccoeceescesoeessees 6, 8, 13, 19, 21

Neil v. Biggerss, 409 U.S. 188 (1972) .ccccccccccccccccccces 23

. | Bae \° FP SAM Be Re eerie Tee 6

Reec v. Ross, 52 U.S.L.W. 4905 (June 27, 1964) ......ceeees 20

Sanders v. United States, 373 U.S. 1

CAPSS) ccccccccccccccecececeeceesceceseeseeess 15, 16, 18, 20

St. Pierre v. Heloemoe, 545 F.2d 1306 (lst Cir. 1976)..... 19

Sumner v. Mata, 455 U.S. S91 (1982)... 200 nevwccccnccveess 23

United States v. Henry, 447 U.S. 264 (1980),

aff'g, 590 F.2a 544 (4th Cir. 1978) wc eeeeneeeeeeeeee «-Dassim

United States v. Henderson, 520 F.2d 896 (24 Cir.),

=’? ee ps =~) Ol Renta

United States v. Sam

(D.C.

1, 636 F.2¢ 621

rrr PP ee ee eee

United States ex rel. Schnitzler v. Follette, 406 F.2d

7. Cir.), cert. denied, U.S. i. eee

Wilson v. Henderson, No. 73-5186, slip op.

(S.D.N.Y¥Y. January 7, 1977), aff'd, 564 F.2d 1185

(24 Cir. 1978), reh'g denied, 590 F.2¢ 408

(26 Cir. 1979), cert. denied, 442 U.S. 945

CBP IS 0006005 606006865 SOS54H4SSSSSSSSHSS OS CHRO COCCE NE 3, 13

Wilson v. Henderson, No. 83-2113, slip op.

(S.D.N.Y¥. March 30, 1983), rev'd, 742 F.

26 741 (24 Cir. 1984), reh'g denied

(28 Cir. Dec. 17, 19B4) weer eneeeeeeeeeeeeeeseseses + POSSim

-iii-

Constitutional and Statutory Provisions

United States Constitution, Sixth Amendment........... pessi=

United States Code, Title 28, sections

ee ee ED i on Obes 66666 0000604606046 00 06b6e passir

United States Code, Title 28, section 2254(d)..... BOs See BD

Rule 9(b) of the Rules Governing United States

ee GSEEee Bee BOSSES Beeb ccc ecescecaesevccesecceses passit

United States Code, Title 28, section 2253.......... rvTTT 14

Legislative History

S. Rep. No. 1797, 89th Cong., 2d Sess.,

reprintec in 1966 U.S. Code Cong.

& Ad. News 3663-3672....... DAseeeebededuseweseeeedeceswes 17

H.R. Rep. No. 1471, 94th Cong., 24 Sess.,

reprintec in 1976 U.S. Code Cong.

BAC. NEWS 2478-2482... cccscccccescccccscccscccccccscecs 18

-iv-

No. 84-1479

In the

SUPREME COURT OF THE UNITED STATES

October Term 1985

HON. ROBERT J. HENDERSON, Superintendent,

Auburn Correction Facility,

Petitioner,

-against-

JOSEPH ALLAN WILSON,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Respondent respectfully submits that the Court should

not issue a writ of certiorari in this case because there is no

special and important reason for review of the decision of the

Court of Appeals for the Second Circuit.

Opinions Below

To the description of the opinions below provided by

petitioner, respondent adds the following:

The opinion of the Court of Appeals for the Second

Circuit, Wilson v. Henderson, is reported at 742 F.2d 741 (2d

%

Cir. 1984).

The proceedings on Wilson's initial application for a

writ of habeas corpus in the United States District Court for the

Southern District of New York and in the Court of Appeals for the

Second Circuit did not present "precisely the same factual and

legal issue” as that raised in Wilson's current application

because at the time of the former proceedings, this Court had not

yet decided United States v. Henry, 447 U.S. 264 (1980).

This Court denied Wilson's petition for a writ of

certiorari in the earlier proceeding, 442 U.S. 945 (1979) because

it was untimely.

Constitutional and Statutory Provisions

In addition to the Constitutional and statutory

provisions that petitioner cites, the following statutory

Provisions are applicable:

1. United States Code, Title 28, United States Supreme

Court Rule 17.1, which provides in pertinent part:

A review on writ of certiorari is not a

matter of right, but of judicial discretion,

and will be granted only when there are

special and important reasons therefor. The

following, while neither controlling nor

fully measuring the Court's discretion,

indicate the character of reasons that will

be considered.

a. When a federal court of appeals has

rendered a decision in conflict with the

decision of another federal court of appeals

on the same matter; or has decided a federal

question in @ way in conflict with a state

court of last resort; or has so far departed

from the accepted and usual course of

judicial proceedings, or so far sanctioned

such a departure by a lower court, as to

call for an exercise of this Court's power

of supervision.

c. When a state court or a federal

court of appeals has decided an important

question of federal law which has not been,

but should be, settled by this Court, or has

Gecided a federal question in a way in

conflict with applicable decisions of this

Court.

2. United States Code, Title 28, section 2253, which

provides in pertinent part:

In a habeas corpus proceeding before a

circuit or district judge, the final order

@3-

shall be subject to review, on appeal, by

the court of appeals for the circuit where

the proceeding is hac.

STATEMENT OF THE CASE

In reversing the District Court and granting Wilson's

application for a writ of habeas corpus, the Court of Appeals

emphasized that under this Court's holding in United States v.

Henry, Wilson's conviction had been procured in a manner that

violated his Sixth Amedment rights. Wilson v. Henderson,

supra, 742 F.2d at 748. The facts as to the state's use of a

surreptitious informant to obtain incriminating statements from

Wilson after he had been arraigned in the absence of his

counsel and the steps Wilson took in his effort to overturn his

conviction are not in @ispute. Petitioner takes issue

exclusively with Wilson's right, after his conviction had

become final and the federal courts had denied his first habeas

corpus petition, to renew his request for relief on the ground

that the decision in United States v. Henry has clarified the

proper standard for determining whether his Sixth Amendment

rights were violated. In this case, however, the Court of

Appeals properly determined that the ends of justice required

review of the merits of Wilson's second petition. Having done

so, it properly exercised its duty to conduct such a review and

correctly decided that Wilson's conviction should be

| overturned.

A. The Robbery, Wilson's Arrest,

and His Arraignment.

On July 4, 1970, an armed robbery of the Star Taxicab

Garage was committed during which the on-duty dispatcher was

shot and killed. Witnesses identified Wilson, a former Star

employee whose brother was still employed there, as being

present on the Star premises at about the time of the

robbery. Aware that the police were looking for him, Wilson

a3eo

voluntarily surrendered himself on July 8 and was promptly

arrested. After receiving his Miranda warnings, he admitted to

Detective Cullen that, while looking for his brother, he came

upon the scene of the crime and witnessed the robbery. Wilson

told Cullen that he had not participated in the robbery, but

fled because he was afraid of being blamed. Counsel was

subsequently assigned to him and he was arraigned on July 9,

1970. Wilson was then placed in the Bronx House of Detention.

B. The State's Enlistment and Use

of a Secret Informant.

On July 7, 1970, the day before Wilson's arrest,

Detective Cullen met with one Benny Lee, an inmate of the Bronx

House of Detention whom Cullen had knowr. for five years and

previously used as an informant. He told Lee that he was

investigating a murder and robbery, showed Lee a photograph of

Wilson, and said that he was fairly certain that he would

arrest Wilson as a suspect within the next twenty-four hours.

, Detective Cullen asked Lee whether he knew Wilson and

whether there was anything that Lee could do to help him with

the case. Lee said that he had “seen him around" but did not

know Wilson very well. Cullen then told Lee that, after

arresting Wilson, he would have him transferred to Lee's cell

in the Bronx House of Detention. Cullen asked Lee to “see if

[he] could find out" from Wiison the names of the two

perpetrators who had escaped identification.

Lee, who was then a third-time offender awaiting

sentencing on a plea of guilty to a reduced charged of robbery

in the third degree, had, by his own testimony, previously

served as a police informant over 100 times. At Wilson's

trial, defense counsel questioned Lee as to whether he received

consideration for informing on Wilson, but failed to elicit a

comprehensible answer. However, it is certain from Lee's

testimony that he was frequently paid for his services as an

informant.

In accorcance with the arrangement between Cullen and

Lee, Wilson was transferred to Lee's cell in the Bronx House of

Detention, which overlooked the Star Taxicab Garage, the scene

of the crime.

C. Events Following Wilson's

Transfer to Lee's Cell.

Immediately upon entering the cell, Wilson was upset

by the view. His first words to Lee were, “Somebody's messing

with me because this is the place that I'm accused of

robbing." Wilson told Lee that on the night of July 4, he had

gone to the Star Garage to see his brother who worked there.

Two men approached him near the front door. He directed them

to the soda machine inside the garage and then walked inside

himself, talked to some people, and bought a soda.

Subsequently, he heard two shots and saw the two men* running

out of the dispatcher's office stuffing money into their

clothes, dropping some of it. Wilson said that he then picked

up some of the money and followed the men out of the garage and

up the street.

Lee told Wilson, “Look, you better come up with a

better story than that because that one doesn't sound too cool

to me.” Over the next few days, Lee and Wilson “calked about

Gifferent people in the street” and, according to Lee, Wilson

gradually altered the description of events that he had first

given. Wilson also received a visit from his brother, who told

him that his family was agitated by the shooting. According to

Lee, Wilson eventually claimed to have planned and executed the

robbery with the two unidentified men.

e Other witnesses also saw the two men and described them to

the police but were unable to identify them. These two

individuals were never apprehended.

-5-

Wilson and Lee spent about nine or ten days together

in the cell overlooking the Star Taxicab Garage. On July 24,

1970, Detective Cullen had another meeting with Lee at the

Bronx House of Detention. Lee toid Cullen that Wilson had

admitted to the planning and execution cf the robbery. At this

meeting, Lee turned over pages on which he had made notations

of “things that [he) thought would be of help to Detective

Cullen.” Later that year, Lee obtained the $10,000 bail that

had been set in his case and was freed pending his sentencins

hearing.

Wilson, who was subsequently indicted and charged with

murder and felonious possession of a wea von, moved to suppress

Lee's testimony at his trial. A pretrial hearing was held

pursuant to People v. Huntley, 15 N.¥.2d 72 (1965). The trial

court denies Wilson's motion on the grounds that Lee had not

"interrogated" Wilson. Consequently, Lee's account of his

conversations with Wilson and Lee's notes were admitted into

evidence in the State's case against Wilson. Wilson was

convicted fo: both crimes and his direct appeals to the higher

courts of the State of New York were futile.

D. Wilson's Initial Application

for a Writ of Habeas Corpus.

After his journey through the courts of the State of

New York, Wilson filed an application for a writ of habeas

corpus in the United States District Court for the Southern

District of New York, claiming, inter alia, that the admission

of Lee's statements violated his Sixth Amendment right to

counsel. Relying on an erroneous interpretation of Massiah v.

United States, 377 U.S. 201 (1964), under which the state trial

court's finding of “no interrogation" of Wilson controlled the

determination of whether his incriminating statements to Lee

were deliberately elicited by the government, the District

Court, Carter, J., rejected this clain.

On @ppeal, the District Court's denial of habeas

corpus was affirmed by the two-to-one vote of a panel of the

Court of Appeals for the Second Circuit. District Judges

Blumenfeld and Mehrtens (both sitting by designation) voted to

affirm the District Court's decision and to deny rehearing,

while Circuit Judge Oakes voted to reverse. Wilson v.

Henderson, 584 F.2¢ 1185 (24 Cir. 1978). A divided court

denied rehearing en banc with Circuit Judges Mansfield, Oakes,

and Gurfein voting to reconsider whether the District Court's

hold:ng with respect to Wilson's Sixth Amendment claim shoulc

be reversed. Wilson v. Henderson, $90 F.2d 406 (2d Cir.

1979). In his dissent from the denial of rehearing en banc,

Circuit Judge Oakes noted that, with respect to Wilson's Sixth

Amendment claim, a majority of the panel of the Pourth Circuit

had recently held “directly contrary” to the majority of the

panel of the Second Circuit in a case entitled Henry v. United

States, 590 F.24 544 (4th Cir. 1978). 590 F.2d at 409 (Oakes,

J., dissenting).

Wilson's petition for certiorari to this Court was

denied without opinion because it was untimely. Wilson v.

Henderson, 442 U.S. 945 (1979).

E. Wilson's Current Application

for a Writ of Habeas Corpus.

Less than four months after this Court denied

certiorari in Wilson's case, it granted certiorari in United

States v. Henry, 444 U.S. 824 (1979).* This Court subsequently

affirmed tne decision of the Court of Appeals for the Fourth

Circuit, which held that the government's evidentiary use of

incriminating statements obtained from an indicted, in-custody

defendant by his fellow inmate, a secret government informant,

* This Court denied Wilson's petition for certiorari on June

| a and granted certiorari in Henry on October l,

-7-

violated the accused's Sixth Amendment right to counsel.

United States v. Henry, 447 U.S. 264 (1980).

In Henry, this Court expressly rejected the

government's contention that a finding of interrogation or

equivalent verbal conduct by the government or its agent was a

necessary element of a violation of the accused's Sixth

Amendment right to counsel under its sixteen-year-old decision

in Massiah v. United States, 377 U.S. 201 (1964). See Henry,

447 U.S. at 271. That issue had been raised by certain

language ("tantamount to interrogation") in the Court's

decision in Brewer v. Williams, 430 U.S. 387, 399 (1977) and

had remained unresolved prior to the Court's decision in

Henry. Compare Henry, 590 F.2d at 546-547 (Winter, C.J.) wit>

Henry, 590 F.2d at 546-550 (Russel, C.J., dissenting).

Attorneys for Wilson took note of this Court's Hen:y

decision, and commenced proceedings in the courts of the State

of New York in an unsuccessful effort to obtain relief. All

state court remedies were exhausted.*

On July 6, 1982, Wilson again petitioned the Unitecd

States District Court for the Southern District of New York for

@ writ of habeas corpus on the ground that his Sixth Amendment

right to counsel had been violated under the test promulgated

by this Court in Henry and that all relevant considerations

militated for the application of the Henry rule to his case.

The District Court, Gagliardi, J., denied Wilson's petition by

° On September 11, 1981, Wilson made a motion in th. Supreme

Court of the State of New York, Bronx County, to vacate his

conviction pursuant to section 440.10 of the New York

Criminal Procedure Law (the State's habeas corpus statute)

on the ground that this Court's recent decision in Renry

established that his conviction had been obtained in

violation of his Sixth Amendment right to counsel. The

motion was denied by order dated November 20, 1981.

Wilson's motion in the Appellate Division of the Supreme

Court, First Department, for leave to appeal the November

1961 order was denied on January 19, 19862.

opinion and order dated March 30, 1983. (Petitioner's Brief,

Appendix C.)

The District Court interpreted Henry as requiring

evidence of "an affirmative effort on the part of [the

informant] to elicit” incriminating statements from the

accused. It noted its agreement with that part of Justice

Powell's concurring opinion in Henry, 447 U.S. at 276, in which

he interpreted the majority's holding to require that “the

informant's actions constituted deliberate and ‘surreptitious

interrogatio[n)' of the defendant.” The District Court

Gistinguished Wilson from Henry, noting that Lee had not made

an “affirmative effort” to question Wilson. Because of its

holding that Wilson's case was distinguishable from Henry, the

District Court did not rule on the “retroactivity” issue of

whether the holding of Henry should be applied in this case.

The Court of Appeals for the Second Circuit

reversed. Wilson v. Henderson, 742 F.2d 741 (2d Cir. 1984).

It rejected the State's argument that principles of finality

should be determinative of Wilson's application, and went on to

consider his application for habeas corpus because the ends of

justice required it. 742 F.2d at 743. It analyzed Henry and

Wilson, and concluded that they are indistinguishable. 742

F.2d at 745. This conclusion is not a new one, but one that

had previously been reached by two Justices of this Court and

_ judges of three Courts of Appeals. United States v. Henry, 447

U.S. at 281 (Blackmun and White, JJ., dissenting); Henry v.

“United States, 590 F.2d 544, 553 (4th Cir. 1978) (Russel, J.,

dissenting); Wilson v. Henderson, 590 F.2d 408, 409 (2d Cir.

1979) (Oakes, J., dissenting); and United States v. Sampol, 636

F.2d 621, 637-638 (D.C. Cir. 1980) (per curiam). The Court of

Appeals held that, under Henry, the government had deliberately

elicited incriminating statements from Wilson in violation of

his Sixth Amendment right to counsel. 742 F.2d at 745.

-9-

The Court of Appeals also held, with respect to the

issue of the retroactivity of Henry, that it established no new

rule of law so that it is automatically applicable to prior

cases. 742 F.2d at 747. Recognizing that Henry is fully

applicable to Wilson, the Court held that Wilson's conviction

on the basis of incriminating statements elicited by the

government through a secret jailhouse informant necessarily

contravened his Sixth Amendment right to counsel, 742 F.24 at

748, and ordered that Wilson be released from custody unless

the State elects to try him anew.

-10-

Summary of the Argument

United States Supreme Court Rule 17.1 provides,

without limiting the Court's discretion, that a writ of

certiorari will be granted "only when there are special and

important reasons therefor." Wilson respectfully submits that

there is no such significant reason for this Court to review

the decision of the Court of Appeals. Petitioner's arguments

in support of granting the writ amount to nothing more than an

expression of dissatisfaction with the outcome below.

Petitioner proposes that this Court review this case

in order to amplify its decision in Henry. In Part I below,

Wilson submits that the Court of Appeals correctly interpreted

Henry and applied Henry to it the facts of Wilson. The

@ecision below leaves no room for ambiguity as to the limits

imposed by the Sixth Amendment on the State's use of secret

informers against arraigned or indicted prisoners.

Petitioner also proposes that this Court grant a writ

of certiorari so that, through this case, it can curtail the

power of the lower federal courts to grant full review on the

merits to a habeas corpus petitioner whose conviction, the

constitutionality of which is in question, has survived one

round of collateral attack. In Part II below, Wilson submits

! that this Court and Congress have determined that the federal

courts have broad discretion to review successive petitions for

a writ of habeas corpus, that these courts have a duty to

conduct such review when the ends of justice require it, and

that the Court of Appeals correctly carried out this duty.

-ll-

ARGUMENT

THE COURT SHOULD DENY THE PETITION

FOR A WRIT OF CERTIORARI.

The gravamen of Wilson's habeas corpus application is

that he was convicted in a manner that today we recognize as

repugnant to the Constitution. The Court of Appeals, in

reversing the District Court, acknowledged that Wilson could

not now be constitutionally convicted on the basis of Lee's

testimony. Petitioner argues that the Court of Appeals should

be stripped of the power to revisit decisions of its own and to

review those of the lower courts, all of which were handed down

before this Court definitively passed on the pivotal question

raised in those earlier proceedings. In light of this Court's

Henry decision, it is now apparent that those earlier courts

erred. Wilson's plea is that those errors now be set right and

the law, as we currently understand it, be applied even-

handedly to him.

Petitioner asks this Court to review many fragmentary

issues concerning the context and manner in which Wilson

attacked his conviction. Wilson replies that the Court of

Appeals had the power to, and did, review his conviction in

light of Henry. Moreover, the Court of Appeals decided

correctly.

" 3. The Decision of the Court of Appeals Is

in Harmony with the Precedents of This Court.

This Court's opinion in United States v. Henry, 447

U.S. 264 (1980), identified the circumstances under which it

violates the accused's Sixth Amendment right to counsel for the

government to procure incriminating statements from him through

the use of a secret informant:

Three factors are important. First, Nichols was

acting under instructions as a paid informant for

the Government; second, Nichols was ostensibly

no more than a fellow inmate of Henry; and third,

Henry was in custody and under indictment at the

time he was engaged in conversation by Nichols.

-12-

447 U.S. at 270. The presence of these three factors led the

Court to hold: “By intentionally creating a situation likely

to induce Henry to make incriminating statements without the

assistance of counsel, the Government violated Henry's Sixth

Amendment right to counsel.” 477 U.S. at 274.

Until this Court's decision in Henry, Massiah was the

primary precedent available to the trial and appellate courts

that examined the validity of the police methods used in

" Wilson's case. In Massiah, this Court held that incriminating

Statements deliberately elicited from the accused by government

agents in the absence of his counsel and recorded by means of a

radio transmitter secretly installed in the accused's

automobile were obtained in violation of his Sixth Amendment

rights. Because the facts of Massiah were markedly different

from those of Henry or Wilson, confusion existed as to which

aspects of the process of "deliberate elicitation” were

determinative.

Until the instant decision of the Court of Appeals in

Wilson's case, the courts interpreting Massiah and attempting

to apply it to the facts of Wilson uniformly focused on the

lack of any direct “interrogation” of Wilson by Lee. See

| Wilson v. Henderson (unreported decision of Carter, J.,

attached as Appendix D to Petitioner's Brief) (S.D.N.Y¥. 1977)

Pp. 32a-33a; Wilson v. Henderson, 564 F.2¢ 1185, 1190 (24 Cir.

/1978); Wilson v. Henderson (unreported decision of Gagliardi,

J., attached as Appendix C to Petitioner's Brief)

'(S.D.N.Y¥. 1983) pp. 28a-29a. In this, they were led astray by

language in Brewer v. Williams, 430 U.S. 387 (1977),

characterizing the investigating detective's conversation with

the accused as “tantamount to interrogation." 430 U.S. at 399

n.6. However, it is now clear that Brewer does not limit

Massiah, but reiterates in a different context the rule that a

-13-

government agent may not deliberately elicit incriminating

information from the accused in the absence of his attorney

when the right to have an attorney present has attached.*

The District Court, in reviewing Wilson's conviction

pursuant to his current application for habeas corpus, erred

because it searched the record for evidence that Lee

“affirmatively secured the incriminating evidence from the

accused,” rather than whether the government had created a

situation in which the accused was likely to make such

statements to the informant. The District Court concluded,

"Since the record plainly establishes that Lee's actions did

not constitute surreptitious interrogation of the petitioner,

the admission into evidence of petitioner's incriminating

statements did not abridge his Sixth Amendment right to

counsel.” (Petitioner's Brief, Appendix C, p. 29a.)

In reversing that decision, the Court of Appeals made

Clear that the appropriate inquiry under Henry as to an

arraigned, in-custody defendant is to determine whether “the

government intentionally staged the scene that induced [the

accused) to make the inculpatory statements” to the secret

informant. 742 F. 24 at 745. The Court of Appeals undertook

that analysis and decided that the very circumstances this

Court considered determinative in Henry were present here. 742

F.2¢d at 745. The Court of Appeals has the power to review

issues such as these on appeal from the District Court. 28

. U.S.C. § 2253. Thus, the decision of the Court of Appeals,

being indisputably in harmony with Henry and Massiah, leaves in

its wake no special or important reason for this Court to

e In Brewer, this Court noted that the government agent

"deliberately and designedly set out to elicit information

from Williams just assuredly as -- and perhaps more

effectively than -- if he had formally interrogated him,"

430 U.S. at 399, and held such a tactic to be

unconstitutional.

-l4-

review it under the standard set forth in Rule 17.1 of this

Court.

II. The Court of Appeals Properly Conducted a Review of

the Merits of Wilson's Application for Habeas

Corpus as Required by the Ends of Justice.

Petitioner urges this Court to grant certiorari in

this case to take the opportunity judicially to rewrite 28

U.S.C. § 2244. (Petitioner's Brief at 14.) The standard that

petitioner asks this Court to adopt would preclude review of

successive habeas corpus petitions unless the federal court

could satisfy a burdensome test grafted onto the standard of

Sanders v. United States, 373 U.S. 1 (1968). (Petitioner's

Brief at 17.) According to petitioner, such a rewriting would

serve to reaffirm the presumption of correctness accorded to

state trial court findings of fact under 286 U.S.C. § 2254(4).

(Petitioner's Brief at 12-13.)

Contrary to petitioner's contentions, however, Wilson

neither subverts the principles underlying 28 U.S.C §§ 2244(b)

anc 2254(d), nor does it reveal a “critical void" in the

statutory framework governing successive collateral attacks on

final convictions. The decision of the Court of Appeals

granting Wilson's habeas corpus application was an appropriate

exercise of its duty to review that narrow subset of successive

applications where the ends of justice warrant it. In

conducting its review, the Court of Appeals did not in any way

Genigrate the role of 28 U.S.C. § 2244(b), which provides for

summary dismissal of nonmeritorious, or repetitious, successive

petitions; rather it reinforced the distinction between abusive

successive petitions and meritorious successive petitions, such

as Wilson's, which § 2244(b) was intended to preserve.

Further, in reviewing Wilson's petition, the Court of

Appeals correctly perceived the scope of the presumption of

correctness accorded state trial court findings of fact under

28 U.S.C. § 2254(d). By independently weighing the state

court's factual findings and reaching its own conclusions as to

the legal significance of those facts, the Court of Appeals

properly exercised its authority to determine mixed questions

of law and fact while leaving undisturbed the basic factual

findings of the state trial court.

A. The Court of Appeals Correctly Determined That

Review of Wilson's Application Was Required to

Serve the Ends of Justice.

In Sanders v. United States, 373 U.S. 1 (1963), this

Court articulated the parameters of the federal courts’

@iscretionary power to dismiss successive habeas corpus

petitions under the provisions of former 28 U.S.C. § 2244,

predecessor of the current 286 U.S.C. §§ 2244(a) and 2244(b):

[E)ven with respect to successive applications on

which hearings may be denied because the ground

asserted was previously heard and decided... §

2244 .. . does not enact a rigid rule. The judge is

permitted, not compelled, to decline to entertain such

an application, and then only if he “is satisfied that

the ends of justice will not be served” by inquiring

into the merits.

373 U.S. at 12 (emphasis added). By requiring that the lower

federal courts accord full review on the merits to those

successive petitions that present compelling circumstances for

habeas corpus relief, Sanders reaffirmed the basic principle

underlying the writ of habeas corpus that the vindication of

Constitutional rights takes precedence over considerations of

judicial economy and finality. 373 U.S. at 7-8.

As its legislative history makes clear, the present 28

U.S.C. § 2244(b) was enacted to “alleviate the unnecessary

burden” resulting from “state prisoners filing [habeas corpus)

applications either containing allegations identical to those

asserted in a previous application that has been denied, or

predicated upon grounds obviously well known to them when they

-16-

filed the preceding application” while nonetheless

"safeguard{ing) the substantial rights of the applicant for the

writ." S. Rep. No. 1797, 869th Cong., 2nd Sess., reprinted in

1966 U.S. Code Cong. & Ad. News 3663-3672. Accordingly, 28

U.S.C. § 2244(b) was not intended to tip the scales in favor of

judicial economy and finality of state court convictions over

substantial rights or even to place these competing

considerations on an equal footing. Rather, it was designed to

equip the federal courts with the means to deal summarily with

certain blatant abuses of the habeas corpus process while

leaving intact the principle announced in Sanders that the

federal courts have a duty to conduct a full review of a

successive habeas corpus petition if the ends of justice would

be served thereby. 373 U.S. at 18-19.

The legislative history of Rule 9(b) of the Rules

Governing Cases and Proceedings under 28 U.S.C. § 2254, enacted

ten years after 28 U.S.C. § 2244(b), confirms the Sanders

principle. After noting that, “[a)s promulgated by the Supreme

Court, [Rule 9(b)] permitted a judge to dismiss a petitioner's

second or successive petition, even if the petition alleged new

and different grounds for relief, if the judge found that the

failure to assert those grounds in a prior petition was ‘not

excusable,'" the House Committee on the Judiciary noted that:

The legislation amends Rule 9(b) .. . by

deleting the “not excusable” standard. .. . The

Committee believes that the “not excusable”

language created a new and undefined standard

that gave a judge too broad a discretion to

dismiss a second or successive petition. The

Fabuse of writ” standard brings Rule 9(b) into

conformity with existing law. As the Supreme

Court has noted in reference to successive § 2255

motions based upon a new ground or a ground not

previously decided on the merits, “full

consideration of the merits of the new

application can be avoided only if there has been

tion

an abuse of the writ or mo remedy; and this

the Government has the burden of pleading.”

H.R. Rep. No. 1471, 94th Cong., 2d Sess., reprinted in 1976

U.S. Code Cong. & Ad. News 2478-2482 (citing Sanders v- United

-17-

States, supra, and 28 U.S.C. § 2244(b), supra) (emphasis

added).

In deciding not to give controlling weight to the

Genial of Wilson's previous petition pursuant to 28 U.S.C. §

2244(b) and Rule 9(b) on the ground that a full review of the

merits of Wilson's petition was required to serve the ends of

justice, the Court of Appeals carried out this Court's mandate

in Sanders, which has guided more than two decades of lower

federal court decisions and survived two occasions of

legislative revision. The decision of the Court of Appeals to

conduct a full review of Wilson's application for habeas corpus

was based on its recognition that no previous court petitioned

by Wilson had properly applied Henry's “deliberately elicited”

test to the facts of Wilson's case:

[W)e hasten to point out that the courts considering

this matter earlier did not have the benefit of the

Henry decision as we now do. Without it, the prior

panel relying on Brewer v. Williams, 430 U.S. 387

(1977), concluded that the “deliberate elicitation"

standard required evidence of “interrogation” as a

prerequisite. Since the state trial judge found that

there had been no “interrogation” of Wilson by his

cellmate, the panel concluded that this negated the

Proposition that Wilson's statements were deliberately

elicited... . The earlier panel also found no

Gistinction between incriminating statements

voluntarily made by a defendant to a known government

officer and statements made to an undercover agent

acting surreptitiously .... Henry substantially

distinguished these two situations.

742 F.2d at 747. In Sanders, this Court pointed out that:

Even if the same ground was rejected on the

merits on a prior application, it is open to the

applicant to show that the ends of justice would be

served by permitting the redetermination of the ground

+ « « « If purely legal questions are involved, the

applicant may be entitled to a new hearing upon

showing an intervening change in the law or some other

justification for having failed to raise a crucial

point or argument in the prior application... .

[T]he foregoing enumeration is not intended to be

exhaustive; the test is “the ends of justice" and it

cannot be too finely particularized.

373 U.S. at 16-17 (citation omitted). While the Court of

Appeals did not regard Henry as a change in the law, it

-18-

recognized thet in light of Henry's clarification of Massiah's

"deliberately elicited” test, the review conducted on the

merits of Wilson's Massiah claim in his first petition was

seriously deficient. Its decision to grant full review of the

merits of Wilson's petition on this ground is consistent not

only with Sanders but with the long-standing practice in the

lower courts with respect to the consideration of successive

habeas corpus petitions.*

* See Ford v. Strickland, 734 F.2¢ 538, 539-49 (llth Cir.

1984), aff'd, 82 L.Ed.2¢ 911 (1985) (certificate of

probable cause granted with respect to second petition

which raised new claim based on evidence and legal

precedent not available st time of first petition); Bass v.

Wainwright, 675 F.2¢ 1204, 1206-08 (llth Cir. 1982) (full

review granted with respect to second petition, to serve

the ends of justice, where the denial of the first petition

rested on a plain errors of law); Cancino v. Craven, 467

F.2d 1243, 1246 (9th Cir. 1972) (same holding); St. Pierre

v. Helgemoe, 545 F.2d 1306, 1308-09 (lst Cir. 1976) (full

review accorded second petition where development of new

law occurred after denial of first petition); Alford v.

North Carolina, 405 F.2d 340, 342-43 (4th Cir. 1966),

rev'd on other grounds, 400 U.S. 25 (1970) (same holding);

United States v. Henderson, 520 F.2d 896, 904 (24 Cir.),

cert. denied, U.S. (1975) (full review granted with

respect to second petition where determinative issues of

fact raised in first petition apparently were ignored); see

also Hobbs v. Pepersack, 301 F.2¢ 875, 879-860 (4th Cir.

1962) (full review granted where the prisoner in his

previous seven petitions had sought but never obtained an

adjudication of the merits of his claims).

The case of U.S. ex rel. Schnitzler v. Pollette, 406

F.26 319 (24 Cir.), cert. ’ ° de

discussed in Petitioner's Brief at 18, is distinguishable

from the above cases and from this case in two respects:

first, in Schnitzler, there was no special circumstance,

such as an intervening change of law or the issuance of a

controlling Supreme Court opinion clarifying an unclear

body of precedent, which occurred between the denial of the

first petition and the filing of the second petition; and

second, as the Court of Appeals for the Second Circuit

pointed out in Schnitzler, “(bly entertaining [the second

habeas corpus application) the district court improperly

functioned as a court of review over a judgment of its

superior Court of Appeals." 406 F.2d at 322.

-19-

There is no basis in “principles of deference to state

court determinations and finality of judgments” (Petitioner's

Brief at 13) warranting review of the Court of Appeals

determination. Less than a year ago, this Court addressed "the

extent of a federal court's powers in ruling upon an issue

raised in a successive petition for a writ of habeas corpus”

(1d. at 13) in the case of Reed v. Ross, 52 U.S.L.W. 4905 (June

27, 1984). While Reed concerned the application of the “cause

and prejudice” requirement to a successive petition that raised

anew ground for relief, the competing concerns at issue there

were identical to those that petitioner raises in its request

for a writ of certiorari:

On the one hand, ..ere is Congress’ expressed

interest in providing a federal forum for the

vindication of the constitutional rights of state

prisoners. . .. On the other hand, there is the

State's interest in the integrity of its rules

and proceedings and the finality of its

judoments. . :

52 U.S.L.W. at 4908 (citations omitted). Reed made clear that

the priorities embodied in the writ of habeas corpus and

reaffirmed in Sanders are still intact:

It is true that finality will be disserved if the

federal courts reopen a state prisoner's case,

even to review claims that were so worded when

the cases were in state court that no one would

have recognized them. This Court has never held,

however, that finality, standing alone, provides

a sufficient reason for federal courts to

compromise their protection of constitutional

rights under § 2254.

52 U.S.L.W. at 4909. Accordingly, a reconsideration of those

priorities clearly is not warranted.

Indeed, a judicial reordering of those priorities to

gestrict federal review of non-abusive successive habeas corpus

petitions would subvert Congress's intent in enacting 28 U.S.C.

§ 2244(b) and Rule 9(b). This Court's interpretation in

Sanders of the federal courts’ discretion and duty to review

the merits of successive petitions was at least partially

informed by Congress's rejection of a bill which would have

made principles of res judicata generally applicable to federa:

habeas corpus. See Sanders, supra, 373 U.S. at ll. In light

of Congress's intention to maintain the availability of full

federal review for successive petitions in 1966 and 1976, this

Court should not attempt “drawing such a line of demarcation"

(Petitioner's Brief at 19).

B. The Court of Appeals Decided the Issues

Raised by Wilson's Application

Consistently with the Requirements of 28

U.S.C. § 2254(9).

At the Huntley hearing, the state trial court made one

factual finding, that Lee, the state's informant, did not

interrogate Wilson. n the basis of this finding, it concluded

that Wilson's statements were "spontaneous" and “voluntary.”

It failed to consider whether either the government's piacing

Wilson in a cell overlooking the scene of the crime, or his

being prompted to chanse his story by an informer who hac been

instructed to extract information from him, or the subtle

psychological inducements of proximity to and confidence in his

fellow cellmate were factors that caused Wilson to talk to Lee

in the absence of his counsel. The holding of Henry, however,

is that a court must examine all the circumstances to determine

whether they amount to the creation by the government of a

Situation likely to induce the prisoner to make an inculpatory

statement in the absence of his counsel. This the state court

ancd the District Court failed to 4o. The Court of Appeals

undertook this inquiry, and held (not found) that the

government's actions constituted “deliberate elicitation.” 742

F.2¢ at 748.

The issue raised by Wilson's habeas corpus petition,

whether the government “deliberately elicited* incriminating

Statements in the absence of his counsel under Massiah and

-2l-

Henry, involves the application of the law as announced by this

Court to the undisputed facts. That the habeas corpus

application involves a state prisoner, and that there was a

factual hearing in the state court, provide no grounds under 28

U.S.C. § 2254(d) for deference on a question of Constitutional

law.

In considering the issue of whether Wilsor's

statements to his cellmate-informant were “deliberately

elicited" by the government, the Court of Appeals did not

reexamine or dispute the state trial court's factual finding

that Lee did not interrogate Wilson. 742 F.2d at 747-748.

Rather, it determined that this fact should not be accorded

controlling significance with respect to the issue of

Geliberate elicitation, as had been done in every previous

consideration of the merits of Wilson's Sixth Amendment

Claim. The Court of Appeals reached its holding based on the

facts that Lee was placed in Wilson's cell to function as a

surreptitious government informant; that Wilson's cell

overlooked the scene of his alleged crime and made him uneasy;

and that Lee's ongoing verbal intercourse with Wilson served to

exaggerate Wilson's already troubled state of mind, all of

which were part of the state trial court record and were never

in dispute. The Court of Appeals arrived at the mixed

| determination of law and fact that:

Since the government intentionally staged the

scene that induced Wilson to make the inculpatory

statements, it may be held to have deliberately

elicited them in violation of Wilson's Sixth

Amendment right to counsel.

742 F.2d at 745.

Contary to petitioner's contention (see Petitioner's

Brief at 11-13), the holding of the Court of Appeals did not

transgress any of the requirements of 28 U.S.C. § 2254(d) and

does not imperil the interests that this statutory provision

-22-

“

was designed to advance. In ruling on Wilson's Sixth Amendment

claim, the Court of Appeals was entitled to “give different

weight to the facts as found by the state court and [to] reach

a different conclusion in light of the [applicable] lega?

Standard.” Sumner v. Mata, 455 U.S. 591, 598 (19862); see als>

Cuyler v. Sullivan, 446 U.S. 335 (19860); Brewer v. Williams,

430 U.S. 387 (1977); Neil v. Biggers, 409 U.S. 188 (1972). It

6id no more than that. It discarded the state trial court's

incorrect legal conclusion, to which it owed no debt of

deference under 28 U.S.C. § 2254.

Respondent respectfully submits that the decision of

the Court of Appeals is consistent with the applicable

Gecisions of this Court and does not conflict with any

established principle of law or depart from the accepted and

usual course of judicial proceedings.

CONCLUSION

For these reasons, the Court should not issue a writ

of certiorari in this case.

Respectfully submitted,

JOSEPH ALLAN WILSON,

Pro Se Respondent

IDA C. WURCZINGER, ESQ.

3701 Connecticut Avenue, N.W.

Washington, D.C. 20008

(202) 363-1761

PHILIP S. WEBER, ESQ.

520 Madison Avenue

New York, New York 10022

(212) 888-6550

Of Counsel

-23-

{|

No. 64-1479

SUPREME COURT OF THE UNITED STATES

HON. ROBERT J. HENDERSON, Superintendent, RE .

Auburn Correctional Facility, CEIVED

Petitioner, MAY 31 1955

- against - OrriCE OF THE Grex

£ M2 OOuer, us oe

JOSEPH ALLAN WILSON,

Respondent.

AFFIDAVIT OF SERVICE

STATE OF NEW YORK )

) @O6<8

COUNTY OF NEW YORK )

Philip S. Weber, being duly sworn, deposes and says:

1. I am a member of the bar of the State of New York and

am of counsel to respondent, Joseph Allan Wilson.

2. On May 31, 1985, I served the within Brief in

Opposition to Petition for a Writ of Certiorari to the vinited

States Court of Appeals for the Second Circuit on counsel for

petitioner, Mario Merola, District Attorney, 215 East lélst

Street, Bronx, New York 10451, by mailing a true copy of the

same by depositing it in a sealed wrapper, postage prepaid, in

a mailbox maintained by the United States Postal Service in the

City of New York.

> *

Anh. aE tires

Philip S« Weber

Sworn to before me this

3lst day of May 1985

pt

CVELYW DAL MEDA

— gaee ws