316 F. Supp. 452 | S.D.N.Y. | 1970
OPINION
Petitioner, Dominick Sabella, was indicted for first degree robbery in February 1964. Thereafter, petitioner had two trials in the Suffolk County Court
Following the affirmance in the Appellate Division, but prior to that by the Court of Appeals, petitioner filed a petition for a writ of error coram nobis in the Suffolk County Court in or about the middle of 1967.
Exhaustion of Remedies
On the facts presented, the threshold determination is whether under 28 U.S.C. § 2254, the applicant has “exhausted all the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”
Claims Asserted by Petitioner
Petitioner’s application is predicated on three grounds. In order, these are: (quoted in full)
“(A) Petitioner has been denied the adequate and competent assistance of assigned counsel to perfect an appeal in the Appellate Court;
“(B) That retained counsel during petitioner’s second trial on the robbery was threatened with disbarment if he continued with the trial;
“(C) That there were unauthorized persons present in the Grand Jury room when on February 16, 1966, the superseding indictment was found.”
Inadequate' Representation by Counsel in Petitioner’s Coram Nobis Appeal
Petitioner’s claim of inadequate assistance of counsel for his coram nobis appeal is bottomed on the following contentions: (1) that it took assigned counsel two years from the date of his assignment to file the appellate brief, and then only when prodded by petitioner’s state habeas application; (2) that counsel failed to contact certain witnesses for possible affidavits in connection with that appeal; and (3) that the appeal brief prepared by counsel was practically identical with petitioner’s original application, prepared without the assistance of counsel.
At the outset, it appears that petitioner is laboring under a misconception with regard to the right to the assistance of counsel secured by the Sixth Amendment. Although this right has been held applicable to state criminal proceedings
However, assuming arguendo the contrary, the court finds that petitioner has not met the extremely heavy burden
Petitioner’s complaint concerning the content of his coram nobis appeal brief is specious. The court has carefully reviewed the arguments raised on appeal, and it is perfectly clear that counsel made a diligent, good faith, competent and adequate effort to argue fora reversal of the County Court’s denial of the coram nobis application. Counsel is not required to brief every conceivable argument,
And, finally, while it is clear from the two year lapse and from the letters submitted by petitioner
Coercion of Petitioner’s Counsel at his Second Trial (Altered Testimony at Petitioner’s Third Trial)
Petitioner’s second claim is that retained counsel in his second trial was threatened with disbarment if he continued with the trial. The facts which give rise to this claim, although sketchy at best,
Even assuming that petitioner intends to claim that the testimony given by Kass at the third trial was changed from that given by Kass at the first trial, dismissal is still warranted for failure to set forth factual allegations necessary to support a claim of constitutional infirmity.
Improper Grand Jury Proceedings
Petitioner’s challenge on this point appears to be directed not against the jurisdiction of the state court either to hear or to impose sentence for the offense charged in the indictment, but rather against the process by which the evidence was presented to the Grand Jury. Thus, at the outset, it appears that the third claim is of a non-jurisdictional nature, which cannot serve as the basis for relief on this application.
In addition, under New York law, a person seeking to challenge an indictment must do so prior to j'udgment unless he can demonstrate good cause for his untimeliness.
And, finally, the third claim is fatally deficient of factual support. Petitioner’s arguments that his indigency and limited investigative capacity preclude him from providing those facts which a hearing will develop is frivolous. If petitioner does not know what the facts are, then his request is wholly conjectural. On the other hand, if he knows but will reveal them only at the hearing, then he is abusing not only the habeas corpus process, but the hearing process he so desperately seeks as well.
Based upon a careful scrutiny of the papers, the court is of the opinion that petitioner’s application for a writ of habeas corpus, although framed for the limited purpose of obtaining a hearing rather than release from custody, should be denied.
So ordered.
. 24 A.D.2d 885; 264 N.Y.S.2d 642 (Nov. 1965).
. Petitioner states only that “[P]rior to the commencement of petitioner’s third trial, assigned counsel submitted a ‘Motion to Suppress’ illegal evidence on the original indictment * * *. After a discussion of the ‘Motion to Suppress’ in the trial judge’s chambers, without the presence of petitioner, and with no decision having been reached, an alleged superseding indictment * * * was found.” (Petition, third of unnumbered pages)
. Petitioner was convicted on January 5, 1966, for the crimes of issuing a fraudulent check and grand larceny. Sentence for this offense was imposed at the same time as for the robbery conviction — viz. April 22, 1966. Petitioner’s application is based upon the robbery conviction.
. 28 A.D.2d 647, 282 N.Y.S.2d 202 (May 1, 1967).
. 21 N.Y.2d 963, 289 N.Y.S.2d 991, 237 N.E.2d 239 (April 10, 1968).
. A copy of that petition sworn to on May 9, 1967, but' bearing a stamp entitled “Correspondence Department” and dated July 2, 1967, was submitted to this court together with other papers.
. Title 28, Section 2241, the jurisdictional counterpart of Title 28, Section 2254, does not presently contain a subsection “(D)”. •However, in view of the fact that petitioner is proceeding without counsel, the court disregards the minor imprecision.
. Delay in this court’s consideration was due to the need to obtain several important documents, including trial transcripts, which were not among the papers originally submitted.
. See 28 U.S.C. § 2254.
. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
. Although the petition was sworn to on September 2, 1969, it was not filed with the Clerk of the Southern District of New York until November 19. No explanation for the time lag appears in the papers.
. New York C.P.L.R. §§ 7011, 5513.
. New York Code Crim.P. §§ 517, 519(6), 521.
. See, e. g., United States ex rel. Presenzano v. Deegan, 294 F.Supp. 1347, 1349 (S.D.N.Y.1969).
. Fay v. Noia, supra, 372 U.S. 434-435, 83 S.Ct. 822.
. Til. g., United States ex rel. Johnson v. Rundle, 286 F.Supp. 765, 767 (E.D.Pa. 1968) ; United States ex rel. Hill v. Deegan, 268 F.Supp. 580, 584 (S.D.N.Y. 1967) ; United States ex rel. Lusterino v. Dros, 260 F.Supp. 13, 15-16 (S.D.N.Y. 1966).
. People v. Puehner, 277 A.D. 9, 97 N.Y.S. 2d 671 (1950); People v. Stottlemeyer, 9 A.D.2d 1022; 194 N.Y.S.2d 101 (1959).
. The standards for finding a deliberate by-pass or waiver are set out in Fay v. Noia, supra, 372 U.S. 438-439, 83 S.Ct. 822 and adopt the waiver test classically defined in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Petitioner’s repeated appeals and petitions to the New York courts, together with the increasingly long wait for the filing of his coram nolis appellate brief, persuade the court that defendant’s resort to the federal court was not intended as a waiver of those state processes then
. See Bell v. Alabama, 367 F.2d 243, 249-250 (5th Cir. 1966) ; cert, denied 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967). It is especially noteworthy that the Attorney General has not discussed the exhaustion question and, apparently, is persuaded, too, that the circumstances support the court’s finding.
. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
. Douglas itself is so limited. Id. at 356, 83 S.Ct. 814.
. The underlying policy considerations need not detain us here. But see, generally, United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715-716 (2d Cir. 1960) ; of., also United States ex rel. Marshall v. Wilkins, 338 F.2d 404, 406 (2d Cir. 1964) ; Rodriguez v. Nelson, 286 F.Supp. 321, 323 (C.D.Cal.1968).
. United States ex rel. Colon v. McMann, 270 F.Supp. 77, 79 (E.D.N.X.1967).
. Of. United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert, denied 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950) ; Of. also United States v. Garguilo, 324 F.2d 795, 796 (2d Cir. 1963) ; United States ex rel. Bristol v. McKendrick, 293 F.Supp. 414, 417 (S.D.N.X.1968).
. United States v. Garguilo, supra, 324 F. 2d at 797.
. Cf. Cardarella v. United States, 375 F. 2d 222, 230 (8th Cir. 1967) ; cert, denied 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967).
. Compare Anders v. California, 386 U. S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. The letters, dated May 29, 1968, and July 1, 1968, are from assigned counsel, Oscar Bloom, Esq. to petitioner. They are very similar, and each describes counsel’s continuing efforts to learn of the decision of the Court of Appeals in petitioner’s direct appeal. Each requests petitioner to notify counsel when and if petioner learns of the decision. The decision in question had been handed down April 10, 1968.
. Cf. United States ex rel. Hardy v. Mc-Mann, 292 F.Supp. 191, 194 (S.D.N.Y. 1968).
. The facts are more fully set forth in the original coram nobis application and coram nobis appeal. In substance, petitioner there states that: counsel in petitioner’s first trial, Bernard Kass, Esq., called eight to ten witnesses including counsel himself; that in petitioner’s second trial, counsel, the same Mr. Kass, rested upon the close of the prosecution’s case without calling a single witness ; that such a course of conduct was caused by counsel’s being threatened by an intermediary of the District Attorney with disbarment if he continued petitioner’s case; that in the third trial, Kass, no longer petitioner’s attorney, was called as a witness but only upon a court order, and thereupon “changed his testimony;” that the petitioner learned, subsequent to his third trial, that Kass had been under indictment and investigation prior to the second trial, and that, petitioner contends, this state of affairs had led Kass to “change his testimony.”
. 24 A.D.2d 885, 264 N.Y.S.2d 642 (November 1965).
. United States ex rel. Homehak v. New York, 323 F.2d 449, 450 (2d Cir.. 1963).
. At the first trial, Kass asked and answered his own questions; at the third, petitioner’s counsel asked Kass questions. The relevant portions of the trial transcripts are found on pp. 707-773 (Trial 1) and pp. 974-1006 (Trial 3).
. See, generally, Knewel v. Egan, 268 TJ.S. 442, 445, 45 S.Ct. 522, 69 L.Ed. 1036 (1925) ; of., Shepherd v. Hunter, 163 F.2d 872, 873-874 (10th Cir. 1947) where neither the use of perjured testimony nor the suppression of evidence in the Grand Jury’s deliberative process raised a jurisdictional question and, hence, were not proper subjects of a habeas corpus application.
. New York Code Crim.Proc. §§ 313(2), 314 and 315. And see People ex rel. Wysokowski v. Conboy, 19 A.D.2d 663; 241 N.Y.S.2d 245 (1963).
. Petitioner states only that “[ Subsequent to the third trial, petitioner became aware of Points II and III in this application.”
. Cf. United States ex rel. Realmuto v. Fay, 230 F.Supp. 158 (S.D.N.Y.1964) ; Sehlette v. People of California, 284 F.2d 827, 834 (9th Cir. 1960).