268 F. Supp. 936 | S.D.N.Y. | 1967
OPINION
Petitioner, serving a sentence of from five to twelve years in Green Haven Prison, Stormville, New York, imposed pursuant to a judgment of conviction rendered in 1960 in the Court of General Sessions, New York County, for criminally possessing a pistol,
Petitioner’s trial was prior to the Supreme Court’s decision in Mapp v. Ohio,
Subsequently, in 1965, petitioner sought a writ of federal habeas corpus in this court. On June 4, 1965 Judge Croake dismissed his application without prejudice for failure to exhaust available state, remedies. The basis of Judge Croake’s decision was that our Court of Appeals,
Thereafter petitioner sought a writ of error coram nobis in the Supreme Court, New York County, which was denied on October 25, 1965, upon the ground that coram nobis was not available to raise an illegal search and seizure claim, but was properly a matter for appeal. However, petitioner did not appeal therefrom but instead came back to this court and sought reargument of the former dismissal of his habeas corpus petition. Judge Croake, on January 26,1966, again dismissed the petition without prejudice upon the ground that since petitioner had not appealed from the denial of state coram nobis relief, he had failed to exhaust his available state remedies.
Petitioner thereupon went back to the New York State Supreme Court and
Evidently petitioner and his counsel persist in the view that since the constitutional claim was presented on the direct appeal, he is not required to seek appellate relief from the denials of the subsequent coram nobis applications. However, as already noted, petitioner’s procedural failure to object at the trial to the admission of the alleged illegally seized gun foreclosed, under New York’s applicable statute, consideration of his claim upon the merits by the New York appellate courts
If petitioner disagreed with either of Judge Croake’s rulings, which held that he had not exhausted available state remedies, he should have appealed therefrom; he will not be permitted to eir
Notwithstanding his failure to appeal the denial of his coram nobis application, petitioner is still free again to apply for such relief,
Petitioner has not been without legal representation and no reason appears for not affording the state courts the opportunity to pass upon the merits of the alleged constitutional infirmity of the judgment of conviction.
The petition is dismissed without prejudice to a renewal in the event, upon consideration by the New York state courts, relief is there denied.
. New York Penal Law, McKinney’s Consol.Laws, c. 40, § 1897(4).
. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); United States ex rel. McCullers v. McMann, 370 F.2d 757, 758 (2d Cir. 1967) ; United States ex rel. West v. LaVallee, 335 F.2d 230, 231 (2d Cir. 1964) ; United States ex rel. Carafas v. LaVallee, 334 F.2d 331 (2d Cir. 1964), cert. denied, 381 U.S. 951, 85 S.Ct. 1798, 14 L. Ed.2d 725 (1965).
. People of State of New York v. Reed, 14 A.D.2d 871 (1st Dep’t 1961).
. People v. Reed, 11 N.Y.2d 1022, 230 N.Y.S.2d 23, 183 N.E.2d 907 (1962).
. Reed v. New York, 371 U.S. 898, 83 S. Ct. 198, 9 L.Ed.2d 129 (1963).
. New York Code Crim.Proc. § 420-a (1946).
. 11 N.Y.2d 157, 159, 227 N.Y.S.2d 423, 182 N.E.2d 100 (1962).
. United States ex rel. Carafas v. LaVallee, 334 F.2d 331, 333 (2d Cir. 1964), cert. denied, 381 U.S. 951, 85 S.Ct. 1798, 14 L.Ed.2d 725 (1965). See also United States ex rel. McCuIlers v. McMann, 370 F.2d 757, 758 (2d Cir. 1967).
. People v. Friola, 11 N.Y.2d 157, 227 N. Y.S.2d 423, 182 N.E.2d 100 (1962).
. Cf. Bell v. State of Maryland, 378 U. S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) ; Patterson v. State of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082 (1935) ; United States ex rel. De Lucia v. McMann, 373 F.2d 759 (2d Cir. 1967) ; United States ex rel. Tangredi v. Wallack, 343 F.2d 752 (2d Cir. 1965) ; United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964).
. See United States ex rel. Jiggetts v. Follette, 260 F.Supp. 301, 302 (S.D.N.Y.1966). See also Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 88 L.Ed. 572 (1944) ; United States ex rel. Molinas v. Mancusi, 370 F.2d 601, 602 (2d Cir. 1967); United States ex rel. Kling v. LaVallee, 306 F.2d 199, 202 (2d Cir. 1962) ; United States ex rel. Hussey v. Fay, 220 F.Supp. 562, 563 (S.D.N.Y. 1963) .
. New York Code Crim.Proc. § 517. “In wliat cases appeal may be taken by defendant
“An appeal may be taken by the defendant as of right from a judgment on a conviction in a criminal action or proceeding as follows:
Hi * * * *
“3. * * * (a) to the appellate division of the supreme court of the department in which the conviction was had, from a conviction by the supreme court
“An appeal may be taken as of right by the defendant from an order denying a motion to vacate a judgment of conviction, otherwise known as a motion or application for a writ of error coram nobis, to the court to which an appeal from the judgment of conviction would lie as provided in this section * *
. See New York Code Crim.Proc. § 420-a; People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100 (1962).
. See Henry v. State of Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 13 L.Ed. 2d 408 (1965) ; Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States ex rel. Carafas v. LaVallee, 334 F.2d 331, 333 (2d Cir. 1964) , cert. denied, 381 U.S. 951, 85 S. Ct. 1798, 14 L.Ed.2d 725 (1965).
. See n. 12 supra.
. See United States ex rel. De Lucia v. McMann, 373 F.2d 759 (2d Cir. 1967) ; United States ex rel. Martin v. McMann, 348 F.2d 896, 898 (2d Cir. 1965) ; United States ex rel. Walker v. Fogliani, 343 F.2d 43, 47 (9th Cir. 1965) ; Miller v. Gladden, 341 F.2d 972, 975 (9th Cir. 1965) ; Blair v. People of State of California, 340 F.2d 741, 744 (9th Cir. 1965) ; Commonwealth of Pa. ex rel. Raymond v. Rundle, 339 F.2d 598 (3d Cir. 1964) ; Hunt v. Warden, 335 F.2d 936, 943 (4th Cir. 1964) ; United States ex rel. Bagley v. LaValle, 332 F.2d 890 (2d Cir. 1964).
. See People v. Mazzella, 13 N.Y.2d 997, 998, 245 N.Y.S.2d 6, 194 N.E.2d 835 (1963) ; People v. Boehm, 309 N.Y. 362, 369, 130 N.E.2d 897 (1955) ; Matter of Bojinoff v. People, 299 N.Y. 145, 151, 85 N.E.2d 909 (1949).
. 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966).
. See Case v. State of Nebraska, 381 U. S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); United States ex rel. Roberts v. LaVallee, 373 F.2d 49, 51 (2d Cir. 1967) ;
. It certainly has not been “authoritatively shown that no further relief is available” to petitioner in the state courts, either through coram nobis or habeas corpus. United States ex rel. Tangredi v. Wallack, 343 F.2d 752, 753 (2d Cir. 1965); United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964).