United States ex rel. Herrington v. Mancusi

• Decision Date: 25 August 1969
• Docket Number: 33494.,Dockets 33088,No. 657,658,657
• Citation: 415 F.2d 205
• Parties: UNITED STATES of America ex rel. Robert A. HERRINGTON, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee. UNITED STATES of America ex rel. Michael J. MARSHALL, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

415 F.2d 205 (1969)

UNITED STATES of America ex rel. Robert A. HERRINGTON, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee.

UNITED STATES of America ex rel. Michael J. MARSHALL, Petitioner-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee.

Nos. 657, 658, Dockets 33088, 33494.

United States Court of Appeals Second Circuit.

Argued May 23, 1969.

Decided August 25, 1969.

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Jeffrey E. Glen, New York City, for petitioners-appellants.

Robert S. Hammer, New York City (Louis J. Lefkowitz, Atty. Gen., of the State of New York and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, FEINBERG, Circuit Judge, and TIMBERS, District Judge.^*

LUMBARD, Chief Judge:

Petitioners Robert Herrington and Michael Marshall, appealing from orders dismissing their habeas corpus petitions, claim that their criminal convictions in the New York Supreme Court for Monroe County were obtained in violation of due process, on the ground that under New York law, Family Court Act § 812, exclusive original jurisdiction over the intra-family "assaults" with which they were charged rested in the Family Court, and not in the Supreme Court.

We hold that petitioners have failed to establish that under New York law the Supreme Court lacked jurisdiction over their cases. Therefore we do not reach their novel due process argument: that federal habeas corpus relief is available to a defendant convicted in a state court which lacked jurisdiction of the subject matter solely because of the provisions of state law.

Petitioner Herrington was tried in New York Supreme Court, Monroe County, under an indictment charging him with the first degree murder of his mother-in-law, and with attempted first degree murder of his wife. Both incidents occurred on December 11, 1962, the evidence at trial indicating that petitioner had killed his mother-in-law and wounded his wife with a shotgun. The jury returned its verdict on July 3, 1963, finding Herrington guilty of first degree manslaughter and second degree assault. Sentences of 15 to 30 years and 7½ to 15 years, to run concurrently, were imposed July 25, 1963. The Appellate Division affirmed the conviction without opinion, People v. Herrington, 23 A.D.2d 524, 255 N.Y.S.2d 824 (4th Dept.1965).

Subsequently, in a coram nobis proceeding, petitioner raised for the first time the jurisdictional issue he relies on in his present petition. Relief was denied by Judge Rosenthal on June 2, 1967. The Appellate Division affirmed without opinion, leave to appeal was denied, and finally the Supreme Court denied certiorari. 390 U.S. 1045, 88 S.Ct. 1646, 20 L.Ed.2d 307 (1968). Herrington's application for a writ of habeas corpus was denied by Judge Burke, in the Western District of New York, on August 7, 1968.

Petitioner Marshall was convicted on March 30, 1967, in New York Supreme Court, Monroe County, of the crimes of sodomy and incest committed against his daughter. He is serving concurrent terms of 10 to 20 years, and 5 to 10 years for these crimes. Marshall's habeas corpus petition, raising a jurisdictional claim similar to that presented by Herrington's petition, was dismissed by Judge Curtin in the Western District of New York on June 4, 1968, for the reason that petitioner then had pending in the state courts an appeal from his conviction. The conviction subsequently was affirmed unanimously, without opinion, by the Appellate Divison, People v. Herring, 30 A.D.2d 1050, 295 N.Y.S.2d 426 (4th Dept.1968), and the Court of Appeals denied leave to appeal.

We affirm the denial of the petitions of Herrington and Marshall, as we conclude that petitioners have not established that under the New York law their cases were not properly tried in the Supreme Court.

I. THE FAMILY COURT ACT

Both petitioners claim that the Supreme Court of New York had no subject matter jurisdiction over the acts alleged in the indictments returned against them, and that exclusive original jurisdiction lay rather in the Family Court. They seek federal habeas corpus relief to void their convictions on the ground that this lack of jurisdiction under provisions of state law violated due process.

In 1962 the State of New York amended its Constitution to create a Family Court, which was to have jurisdiction "as may be provided by law," over "crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household." N.Y. Const. art. VI, § 13(b). Legislation implementing this constitutional amendment was passed by the Legislature in 1963 in the form of the Family Court Act. N.Y.Jud. — Court Acts, Pt. 1, Family Court Act § 1 et seq. (McKinney 1963).

The key provision of the Act for present purposes is § 812:

"The family court has exclusive original jurisdiction over any proceeding concerning acts which would constitute disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household."

If a criminal complaint charging any of the acts within the compass of § 812 is lodged in any court other than the Family Court, that court must transfer the complaint to the Family Court under § 813. However, the Family Court in turn may transfer any proceeding within its jurisdiction under § 812 to an appropriate criminal court if it finds "that the processes of the family court are inappropriate." Family Court Act § 814(a). After such a transfer by the Family Court the usual New York substantive and procedural law applicable to criminal prosecutions governs the disposition of the case, just as if the Family Court had never entered the picture.

The purpose of the above provisions is stated in § 811 of the Act. The Legislature determined that many criminal complaints founded upon intra-family assaults or disorderly conduct were brought by complainants to secure "practical help" in adjusting marital difficulties, rather than to secure a criminal conviction. The Act eliminates the need for such an indirect approach by vesting in the Family Court, with its power to enter orders for support and protection and its facility for initiating conciliation proceedings, an exclusive original civil jurisdiction over certain intra-family offenses. But, recognizing that the Family Court's ameliorative processes may be futile or inappropriate in some cases, the court may transfer matters to a criminal court for prosecution. See Montalvo v. Montalvo, 55 Misc. 2d 699, 286 N.Y.S.2d 605, 609-611 (Fam. Ct.1968). Thus the legislative scheme contemplates criminal prosecution of family offenses constituting assault or disorderly conduct only if a Family Court judge first determines that the dispute cannot be resolved through the less severe remedies at the Family Court's disposal. See generally Joint Legislative Comm. on Court Reorganization, Rep. No. II, Jan. 30, 1962, pp. 18-19. It is apparent that a defendant has a vital interest in the question of whether the Family Court or a criminal court acquires jurisdiction over the complaint filed against him. The maximum sentence that the Family Court may impose is six months, in the event of the violation of an order of protection, while a criminal prosecution can lead to extended sentences, such as those imposed upon both petitioners here.

II. ROLE OF THE FEDERAL COURTS

The due process claim which petitioners seek to raise is a novel one. It has long been settled that habeas corpus relief is available to a defendant convicted by a court without jurisdiction. E.g., Ex parte Watkins, 28 U.S. (3 Pet.) 193, 7 L.Ed. 650 (1830); In re Coy, 127 U.S. 731, 758, 8 S.Ct. 1263, 1272, 32 L.Ed. 274 (1887) ("when the question of jurisdiction is raised on habeas corpus, the point to be decided is, whether the court has jurisdiction of that class of offenses"); Bowen v. Johnston, 306 U.S. 19, 23-24, 59 S.Ct. 442, 83 L.Ed. 455 (1939). But no federal court to our knowledge has ever granted a writ where a state court's asserted lack of jurisdiction resulted solely from the provisions of state law, which is the situation alleged in both petitions before us. Concededly, the New York courts have jurisdiction to prosecute murder, attempted murder, sodomy and incest, the only matter in dispute being which state court had jurisdiction in these instances. Thus we are asked to hold that the New York Supreme Court deprived petitioners of due process of law in exercising criminal jurisdiction over them in violation of § 812 of the Family Court Act. Of course, even were we to hold that the Supreme Court had no jurisdiction under state law, petitioners would not be entitled to relief under the due process clause unless we also found that this lack of jurisdiction constituted such a fundamental unfairness in petitioners' trials that their convictions could not stand.

But we do not reach this constitutional issue as we find that petitioners have failed to establish that § 812 deprived the Supreme Court of jurisdiction. In addressing this question of state law it hardly need be said that the role of a federal court is a modest one. Section 812 reflects a state policy concerning the appropriate allocation of jurisdiction between the New York Family Court and the criminal courts, and with this policy, and its elaboration and effectuation in the course of case by case adjudication, the federal courts have no direct concern. An occasion for possible federal intervention arises only if it is determined that § 812 has vested jurisdiction over a given case in the Family Court, and yet a conviction has been secured in a criminal court. Proper respect for the primary role of the New York courts in interpreting that state's Family Court Act policy, as well as the desirability of avoiding the premature confrontation of a sensitive constitutional issue, counsel that the federal courts refrain...