Petitioner Eugene Twitty, a state prisoner, appeals from a judgment of the United States District Court for the Eastern District of New York (Mark A. Costantino, Judge ), dismissing his petition for a writ of habeas corpus. The district court held that Twitty had exhausted his state remedies but that his claims lacked merit. We conclude that as to certain of his claims Twitty did not exhaust his remedies in the state court, and that the claims as to which he did exhaust his remedies do not justify the granting of the writ. Hence we affirm the district court's judgment.

* Twitty was convicted of murder and felony murder in 1972 in New York Supreme Court, Kings County. The case arose out of the robbery of a supermarket in Brooklyn in August 1971, during which the manager of the store was shot and killed by one of the robbers. The prosecution's case in chief rested principally on the testimony of two eyewitnesses to the robbery who identified Twitty as the robber who shot the store manager when the latter had difficulty in opening the safe, and on the testimony of a police officer who had arrested Twitty's alleged accomplices and, on the basis of their statements, searched out and eventually arrested Twitty. After presentation of the defense case, which included two alibi witnesses for Twitty, the prosecution called as a rebuttal witness one of Twitty's alleged accomplices who had pleaded guilty, who testified that Twitty had been one of the robbers and had shot the store manager.

Twitty was represented at trial by assigned counsel, Abraham Kartzman. Twitty claims that, for various reasons, Kartzman's performance was so inadequate that he was denied effective assistance of counsel at trial in violation of his rights under the Sixth Amendment to the Constitution.1 The chronology of events that give rise to his claim is as follows.

The robbery and murder took place on August 24, 1971, in the presence of two eyewitnesses: a store guard, and an electrician who had been called to the store to make repairs. On September 8, 1971, police detective Patrick Cambridge arrested three suspects, including one Robert Smith, but not including Twitty, on charges of murder. After interrogating these three men, Cambridge commenced to search for Twitty. Twitty was indicted on two counts, murder and felony murder, and was eventually arrested in Wichita Falls, Texas, on December 28, 1971.

On January 4, 1972, Twitty was arraigned in Brooklyn and Kartzman was assigned as his counsel. Kartzman made no pretrial procedural motions,2 and the case was called for trial on January 26. At that time Twitty told the court that he wanted a different lawyer, complaining that "I don't think Mr. Kartzman here, have (sic ) given me justice in my eyesight." The court declined to appoint other assigned counsel, but gave Twitty until the next day to retain counsel, indicating that any new counsel would be given a reasonable opportunity to prepare for trial. The next day, Twitty said that he had been unable to obtain other counsel. He reiterated his desire for counsel other than Kartzman, stating that Kartzman never believed anything Twitty said and would not listen to him. Twitty then attempted unsuccessfully to inform the court that he had been in the South during July and August 1971, but the court refused to go into the merits of the case. The court again declined to appoint other counsel, whereupon Twitty said he would represent himself. After being warned of the risks of proceeding pro se, however, he indicated that he would allow Kartzman to represent him.

On the following day, Friday, January 28, the State opened its case,3 which included the testimony of the two eyewitnesses.4 Both had seen the events at close range and both positively identified Twitty as the robber who shot the deceased.

The defense case began on Monday, January 31 with Twitty taking the stand in his own defense. He testified that he had been in North Carolina when the crime took place. After Twitty's testimony, Kartzman requested a recess until the next day to allow two alibi witnesses to come to New York, stating that he had been unaware until that morning that there would be alibi witnesses to substantiate Twitty's testimony. In light of the delay, the prosecutor asked to call Mrs. Twitty at that time as a rebuttal witness; defense counsel said he had no objection. Mrs. Twitty testified, and the case was adjourned to February 2.

When trial resumed, Twitty again asked for a change of lawyers and the request was again denied. Two alibi witnesses from North Carolina then testified for the defense. The prosecutor recalled Twitty for additional cross-examination and asked him, without objection, whether he had told Kartzman his alibi. Although Twitty appeared not to understand the term alibi, he testified that he had told Kartzman he was in North Carolina on August 24, 1971. The defense rested and the prosecutor then called Kartzman as a rebuttal witness. After Kartzman took the stand, was sworn in and identified himself, a side-bar conference was held, at which the prosecutor stated that he would ask Kartzman, inter alia, whether Twitty had told him about the alibi. The prosecutor adverted to Kartzman's statement two days earlier, out of the jury's presence, as to his ignorance of the alibi witnesses. Kartzman did not immediately object to testifying, but when the court pointed out that such a conversation would be privileged, Kartzman said that he would assert the attorney-client privilege. At that point, the prosecutor withdrew Kartzman as a witness.

Still out of the presence of the jury, the prosecutor stated that he would call as a rebuttal witness Robert Smith, one of Twitty's alleged accomplices in the robbery, who had pleaded guilty to felony murder on January 26. The prosecutor explained that he had not intended to call Smith and decided to do so only after he heard the unexpected alibi defense. He stated that during the Tuesday recess, he had offered to allow Smith, in return for his testimony, to withdraw his plea of guilty to felony murder and to plead to first-degree manslaughter, an offer Smith had accepted. After this explanation by the prosecutor, Kartzman moved for a mistrial, apparently on the ground that such rebuttal testimony was not permitted by New York Criminal Procedure Law ("CPL") § 260.30.5 A colloquy ensued during which the court at first stated that it would "in all likelihood" grant a mistrial, and that the new trial would begin the same afternoon, although the court expressly recognized that special circumstances would justify permitting Smith to testify as a rebuttal witness. After hearing from the prosecutor, the court again adverted to the special circumstances that would justify permitting Smith's testimony on rebuttal, and stated, "I want to make it clear that I am not stating that I will grant the application, but, rather, that I will give some consideration to it." The court reiterated that if the motion were pressed, "we will discharge this jury and impanel a new jury and commence the retrial immediately." Kartzman then informed the court that he was scheduled to embark shortly on a month-long vacation, that his tickets were already paid for, and that starting a second trial immediately would deprive him of his vacation. The trial judge insisted that any retrial would begin immediately. After conferring with Twitty, Kartzman finally withdrew the motion. The entire colloquy is set forth in the margin.6

Trial resumed immediately, and as a rebuttal witness Smith testified that he had seen Twitty shoot the store manager. On cross-examination Kartzman brought out that Smith's accomplices had threatened him before he pleaded guilty; that the Court had said it would give "favorable consideration" to Smith in sentencing if he pleaded guilty, depending on the contents of the probation report; that Smith would be permitted to withdraw his plea if dissatisfied with the sentence; that Smith had insisted on further consideration in return for testifying and would not have testified without the promised reduction of his plea to manslaughter; and that Smith had been a narcotics user for four or five years, and had used narcotics on the morning of the crime, on the day he confessed, and on the day he pleaded guilty. Because at least part of this cross-examination amounted to an attack on Smith's testimony as a recent fabrication, the prosecutor was permitted to bring out on redirect the fact that when Smith confessed on September 8, he gave essentially the same story, implicating Twitty as the murderer.

The jury, after deliberating for approximately twelve hours, found Twitty guilty on both counts. Twitty was sentenced on September 11, 1972, and remains incarcerated. His conviction was affirmed unanimously without opinion by the Appellate Division, Second Department, on January 16, 1975. On March 18, 1975, a motion for leave to appeal was denied by the New York Court of Appeals. Twitty was represented by new counsel on appeal.

Twitty claims that Kartzman's performance before and during trial was so inadequate that he was denied the effective assistance of counsel guaranteed him under the Sixth Amendment. Specifically, he asserts that Kartzman

(a) failed to prepare for trial in that he did not adequately consult with his client, failed to pursue Twitty's alibi defense, and failed to make the usual pretrial motions;

(b) failed to move for a Wade hearing although identification was the key issue in the case;

(c) placed his own personal interest above his client's interest in receiving a fair trial;

(d) failed to object to testimony elicited by the prosecution that was in direct contravention of the attorney-client and husband-wife privileges;

(e) opened the door, by his inept cross-examination of Smith, to the prosecutor's use of Smith's prior confessions.

The threshold issue is whether available state court remedies have been exhausted as to any or all of these claims. 28 U.S.C. § 2254(b) (1976).

In order to exhaust his state remedies a petitioner must have "fairly presented" to the state court the same claim that is the basis for his petition for habeas corpus. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). This requires that the facts on which the defendant relies have been called to the attention of the state court, e. g., United States ex rel. Cleveland v. Casscles, 479 F.2d 15 (2d Cir. 1973), and that the state court be informed of the legal basis for the claim. E. g., Picard v. Connor, supra ; Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979). The goal of these requirements, in the interest of federal-state comity, is simply to ensure that the federal courts not intrude upon state proceedings unless and until the state courts have been given a fair opportunity to consider and act upon the claims on which the habeas corpus petition is based.

We have reviewed the briefs submitted to the Appellate Division on Twitty's appeal7 and conclude that Twitty has exhausted his remedies as to the claims that he was denied effective assistance of counsel (1) because of Kartzman's failure to move for a Wade hearing and (2) because of the withdrawal of the motion for mistrial. Point V of Twitty's Appellate Division brief argues, albeit briefly, that "(t)he failure of defense counsel to have a Wade hearing prejudiced the defendant's right to due process and effective assistance of counsel." Point VI argues that the "withdrawal (of the mistrial motion) by defense counsel because of purely personal reasons and prejudicial to the defendant, was a further violation of defendant's right to due process and to effective aid of counsel." While Twitty's new counsel did not expressly cite the Constitution or cite any authorities in support of these claims, the mention of "effective assistance of counsel" instantly calls to mind the Sixth Amendment's guaranty of the accused's right "to have the Assistance of Counsel for his defence."8 We thus conclude that the brief fairly presented to the state court the substance of the Sixth Amendment claims insofar as they are based on the failure to move for a Wade hearing and the withdrawal of the mistrial motion. See Callahan v. LeFevre, 605 F.2d 70, 74 (2d Cir. 1979).

Any doubt we might otherwise have on this score is resolved by an examination of the State's brief in the Appellate Division. There the State observed that "counsel is attacked . . . directly in Points V and VI" of Twitty's brief, and argued that Twitty was not denied effective assistance of counsel. In support of its position the State cited not only state authorities, but also eight federal cases, including the leading case in this Circuit on the standard of effectiveness required by the United States Constitution, United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S. Ct. 478, 94 L. Ed. 586 (1950), and the more recent United States v. Yanishefsky, 500 F.2d 1327 (2d Cir. 1974). Since the State correctly understood in 1974 that Twitty's claim was at least partly based on the United States Constitution, we cannot accept its argument years later that the federal claim was not raised. Cf. Smith v. Digmon, 434 U.S. 332, 98 S. Ct. 597, 54 L. Ed. 2d 582 (1978) (per curiam) (in determining that state prisoner had exhausted his remedies, Court noted that the State's brief in state court proceedings had vigorously opposed the petitioner's constitutional claim).

Twitty has not, however, exhausted his state remedies as to his other claims presented here. The claim that counsel made a mockery of his representation of Twitty by failing to investigate Twitty's alibi defense does not appear to have been presented to the Appellate Division at all. And to the extent that the other alleged failings were adverted to in the Appellate Division, they were not there asserted to constitute ineffective assistance of counsel. The fact that effective assistance of counsel was mentioned in the contexts of a Wade hearing and the mistrial motion did not suffice to alert the state court to all of the claims Twitty raises here, and we find that these other claims were not fairly presented to the state court on the basis of denial of assistance of counsel. Cf. Fielding v. LeFevre, 548 F.2d 1102, 1107 (2d Cir. 1977). Petitioner remains free to pursue these other claims in state court.9

Consequently we will consider here the merits of only two claims: that Twitty's Sixth Amendment rights were violated by counsel's failure to move for a Wade hearing, and that those rights were violated by the withdrawal of the motion for a mistrial.

The standard in this Circuit for determining lack of effective assistance of counsel is that set forth in United States v. Wight, supra, 176 F.2d at 379:

(U)nless the purported representation by counsel was such as to make the trial a farce and a mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice as grounds for the issuance of a writ of habeas corpus . . . .

A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.

Our Court has many times adhered to that standard, e. g., United States v. Bubar, 567 F.2d 192, 201-02 (2d Cir.) (and cases cited therein), cert. denied, 434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d 151 (1977), and has thus far declined the invitation to adopt the less stringent standards of other circuits, e. g., United States v. Yanishefsky, supra, 500 F.2d at 1333 n.2. See also Indiviglio v. United States, 612 F.2d 624, 629 n.8 (2d Cir. 1979), and concurring opinion of Judge Mansfield, id. at 632; United States v. Menendez, 612 F.2d 51, 55 (2d Cir. 1979).10

Kartzman's failure to move for a Wade hearing does not amount to ineffective assistance of counsel. The purpose of a Wade hearing is to determine dehors the trial whether pretrial identification procedures have been so improperly suggestive as to taint an in-court identification. See United States v. Wade, 388 U.S. 218, 242, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). We have held that a petitioner who claimed that a failure to seek a Wade hearing with respect to a particular witness who was only one of several eyewitnesses to connect him to the crime, did not make a showing of ineffective assistance of counsel where he did not show that there was some basis for questioning the propriety of the out-of-court identification procedure. United States v. Daniels, 558 F.2d 122, 126 (2d Cir. 1977). Compare Saltys v. Adams, 465 F.2d 1023 (2d Cir. 1972).

There is nothing in the record before us which suggests that there was any pretrial identification of Twitty by the two eyewitnesses, either by way of line-up, or show-up, or photographic array. Indeed, if either witness had so identified Twitty, the prosecutor would have been required to serve notice on Twitty of that fact, pursuant to New York CPL § 710.30, precisely in order to give Twitty an opportunity to move under CPL § 710.20(5) to suppress the eyewitness identification on grounds that it was tainted.11 There is no indication in the record that the prosecutor served notice under section 710.30. Nor was there any reason to suspect there had been a previous identification by the eyewitnesses. This case did not present the common identification problem of the police arresting a suspect based on a photographic identification by an eyewitness. Rather, the case was apparently "broken" when Smith's fingerprints were found in the supermarket (Tr. 390-91), and Smith, upon his arrest, implicated Twitty in his confession. Certainly there was no use at the trial of any previous identification.12

Thus we find that there were no grounds requiring Kartzman to move for a Wade hearing. Hence his failure to make such a motion did not violate Twitty's constitutional rights.

Twitty's claim that he was denied effective representation because of Kartzman's withdrawal of the motion for a mistrial in deference to his vacation plans is more troublesome. Certainly an attorney's placing his own interests ahead of those of his client, to the client's prejudice, cannot be tolerated. Our review of New York law, however, leads us to conclude that Twitty did not have a right to a declaration of mistrial, and he has not established that the withdrawal of the motion prejudiced him.

The mistrial motion was based on the contention that Smith's testimony was not proper rebuttal under New York CPL § 260.30.13 See People v. Richardson, 25 App.Div.2d 221, 268 N.Y.S.2d 419, 423 (1st Dept. 1966) (cited by the trial judge in the colloquy with Twitty's counsel, supra note 6), in which the prosecutor "saved" two witnesses to rebut an expected alibi defense and was allowed to reopen his case when the alibi defense did not materialize; the Appellate Division criticized this practice in dictum; People v. Fluker, 51 App.Div.2d 1045, 381 N.Y.S.2d 330, 331 (2d Dept. 1976) ("Evidence which places a defendant at the scene of the crime is and must be offered as part of the People's direct case and cannot be presented in rebuttal of an alibi defense") (quoting People v. Baylis, 75 Misc. 2d 397, 399, 347 N.Y.S.2d 892, 894 (Nassau County Ct.1973)); People v. Coles, 47 App.Div.2d 905, 366 N.Y.S.2d 216 (2d Dept. 1975) (alternative holding).

Nevertheless, CPL § 260.30(7) gives the trial judge leeway to vary the order of trial:

In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party's original case.

During the colloquy the trial court made it clear that it felt the circumstances would justify permitting Smith to testify on rebuttal, and by the end of the colloquy it was by no means clear that the mistrial motion would have been granted. It cannot necessarily be inferred from cases such as Fluker, supra and Richardson, supra that allowing Smith to testify on rebuttal in Twitty's trial was an abuse of discretion, for the rebuttal witnesses in the cited cases were apparently law enforcement officers or neutral citizens whose testimony the prosecutor could freely have used in his case in chief. Here, however, the prosecutor was unable to obtain Smith's testimony on rebuttal without compromising Smith's plea of guilty to felony murder, and presumably would have had to make a similar compromise in order to obtain Smith's testimony for inclusion in the State's direct case. Especially in light of the prosecutor's surprise at the presentation of Twitty's alibi defense,14 see People v. Ayers, 55 App.Div.2d 783, 389 N.Y.S.2d 481 (3d Dept. 1976) (approving such a reopening of the People's case when the prosecutor is faced with unforeseen developments in his own case); People v. Reaves, 30 App.Div.2d 828, 292 N.Y.S.2d 296 (2d Dept. 1968), aff'd mem., 26 N.Y.2d 921, 258 N.E.2d 401, 310 N.Y.S.2d 104 (1970); see also People v. Tralli, 88 Misc. 2d 117, 387 N.Y.S.2d 37 (App.T.1976), it does not appear that the trial court's allowing Smith to testify should be considered an abuse of discretion. In any event, the Appellate Division did not find it an abuse; the claim that a mistrial should have been granted was clearly argued to that court, which affirmed Twitty's conviction without opinion.15

Moreover, even assuming that the motion should have been granted, it is not clear that Twitty was prejudiced by not gaining a new trial, since the complaint related merely to the order of proof rather than its admissibility.

Finally, it is not certain that Kartzman withdrew the motion because of his vacation plans. At one point in the colloquy he indicated that he would suffer contempt rather than proceed within the framework ordered by the court. And before the mistrial motion was eventually withdrawn, Kartzman conferred with Twitty. There is no indication in the record that Twitty objected or that he did not understand the nature of the question. With the benefit of hindsight, it might be argued that a different tactical decision would have been better for Twitty, but that is far from a showing of constitutionally defective representation.

Since we conclude that the only asserted grounds as to which Twitty exhausted his state remedies do not meet our standards for showing ineffective assistance of counsel, the judgment of the district court is affirmed.16