U.S. ex rel. Wojtycha v. Hopkins

• Decision Date: 29 May 1975
• Docket Number: No. 74-1807,74-1807
• Citation: 517 F.2d 420
• Parties: UNITED STATES of America ex rel. Chester WOJTYCHA, Appellant, v. Walter HOPKINS, Chief Probation Officer, Hudson County, New Jersey, and Geoffrey Gaulkin, Hudson County Prosecutor, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 420

517 F.2d 420

UNITED STATES of America ex rel. Chester WOJTYCHA, Appellant, v. Walter HOPKINS, Chief Probation Officer, Hudson County, New Jersey, and Geoffrey Gaulkin, Hudson County Prosecutor, Appellees.

No. 74-1807.

United States Court of Appeals Third Circuit.

Argued March 5, 1975.

Decided May 29, 1975.

Crummy, Del Deo, Dolan & Purcell, Newark, N. J., for appellant; John T. Dolan, Newark, N. J., of counsel; David M. Hyman, Newark, N. J., on the brief.

William F. Hyland, Atty. Gen. of N. J., Trenton, N. J., for appellees; Robert J. Genatt, Deputy Atty. Gen., East Orange, N. J., of counsel and on the brief.

Before ADAMS, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

This is a habeas corpus case having its origin in a state conflict of interest charge against a municipal official. The dismissal of an ensuing appeal by the United States Supreme Court, in the district court's view, was dispositive of an attack on the constitutionality of the relevant state statute. While granting that a probationary sentence was sufficient to establish federal jurisdiction, the court rejected other bases for relief. We agree and affirm.

Petitioner was convicted by the New Jersey state courts of violating a statute prohibiting an elected freeholder from being "directly or indirectly interested" in the furnishing of supplies paid for by the Board of Freeholders of a municipality. ¹ He was sentenced to a one-year suspended jail term, a fine of $1,000, and probation conditioned upon the payment of $2,500 costs.

The appellate division of the Superior Court of New Jersey affirmed the conviction, and the state Supreme Court denied certification. ² Petitioner appealed to the United States Supreme Court on the premise that the statute was unconstitutional because it was vague and it violated the Equal Protection Clause. The appeal was dismissed "for want of a substantial federal question." ³

The petition for habeas corpus brought in the district court was denied, and this appeal followed.

For some years before his election to the Board of Freeholders of Hudson County in November, 1969, petitioner Wojtycha had been a proprietor of the Mooney Surgical Company. Prior to taking the oath of office, he signed the necessary agreements to sell this company to the Helm Supply Corporation whose only stockholders were Wojtycha's son, daughter, and their spouses. The consideration recited in the contract was a cash payment of $32,031.41 and the cancellation of a debt owed by petitioner to Helm.

Petitioner's wife had maintained the books and records for both Helm and Mooney at petitioner's home without charge for some years. She continued to do so during the transition period, and, although not an officer of Helm, she signed documents and checks for the corporation with the apparent acquiescence of the stockholders.

On January 8, 1970, the Board of Freeholders, of which petitioner was then a member, awarded Mooney a contract to furnish the county's surgical supplies. ⁴ Five days later, Helm's checks in the amount of $32,031.41, payable to Mooney, were deposited in its still active account on which petitioner could draw. He then signed checks in blank and delivered them to his wife. After she filled out the checks in the total sum of $32,000, payable to Edward Wojtycha, petitioner's brother, the checks were deposited in Edward's account. He, in turn, gave a signed blank check to petitioner's wife, who completed the instrument to make the amount $32,000 and Helm the payee.

At trial in the state court, the defense contended that Helm had received a loan from Edward who, lacking funds, had previously borrowed the money from petitioner. The prosecution attacked the whole transaction, stating that it was a sham and that petitioner had retained his proprietary interest in Mooney. Alternatively, the state contended that, considering the size of the corporation and its assets, petitioner, as a substantial unsecured creditor, was "interested" in the company and his brother Edward was a mere "straw man."

The appellate division found it unnecessary to decide whether a debtor- creditor relationship constituted an "interest" under the statute. It concluded that the proofs accepted by the jury established the fact of Wojtycha's beneficial ownership in Mooney despite the apparent transfer. ⁵

Petitioner contends that the statute is unconstitutional, that the indictment was defective, and that his waiver of immunity before the grand jury was coerced.

I. THE IN-CUSTODY REQUIREMENT

Initially, we must inquire whether federal jurisdictional requirements have been met. At the time the petition was filed in the district court, Wojtycha was on bail, and the execution of his sentence had been stayed by the state court. 28 U.S.C. § 2241 states that in order to qualify for habeas corpus relief in the federal courts an applicant must be "in custody." ⁶ This condition has been given an expansive interpretation, and clearly the petitioner need not be physically confined in a penal institution.

In Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), the Supreme Court held that a person released on his own recognizance pending appeal of his conviction met the "in-custody" requirement. The Court relied, to a great extent, on the fact that the petitioner was subjected to restraints not shared by the public generally he could not come and go as he pleased, and his freedom of movement rested in the hands of state judicial officers.

There is an important distinction between that case and the one sub judice: in Hensley, if the petitioner was unsuccessful, he would have been required to serve a jail term. That eventuality is not squarely presented here because Wojtycha's jail sentence was suspended. Without more, petitioner's standing to claim habeas corpus relief would be doubtful. United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557 (3d Cir. 1971), cert. denied, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d 96 (1972). However, in addition to the suspended sentence, Wojtycha was placed on probation, and a failure to pay the $2,500 in costs could have resulted in his incarceration. ⁷ The factual situation is similar to that in Walker v. North Carolina, 262 F.Supp. 102 (W.D.N.C.1966), aff'd, 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2134, 18 L.Ed.2d 1360 (1967). There, Judge Craven ruled that the imposition of a suspended sentence which carried with it the threat of incarceration for failure to comply with certain conditions was sufficient to establish federal habeas corpus jurisdiction.

Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), held that a person on parole was in the custody of the state parole board. The Court noted that a parolee is subjected to a variety of restrictions which "significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do." 371 U.S. at 243, 83 S.Ct. at 377. We recognize that there may be differences between parole and probation conditions, and, although the restrictions in Jones v. Cunningham,supra, were more substantial than those applicable to Wojtycha, such considerations would not preclude application of that case's rationale to petitioner here. In United States v. Washington, 341 F.2d 277 (3d Cir.), cert. denied, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 (1965), we stated that the custody requirements for 28 U.S.C. § 2241 and § 2255 were the same and added that probation was sufficient to constitute custody under § 2255. ⁸ We conclude, therefore, that petitioner has met the burden of establishing the statutory prerequisite of custody and that jurisdiction does exist.

II. THE CONSTITUTIONALITY OF THE NEW JERSEY STATUTE

During the proceedings in the state courts, petitioner persisted in his attack on the constitutionality of the New Jersey statute, N.J.S.A. 2A:135-8(c). As has been noted, an appeal was taken to the Supreme Court of the United States ⁹ which dismissed the case for want of a substantial federal question. Our task is to determine whether that action adjudicated the issue raised on appeal and foreclosed further consideration in habeas corpus proceedings. We are of the opinion that it did.

28 U.S.C. § 2244 provides that a prior judgment of the Supreme Court which actually adjudicates a claimed federal right is conclusive for subsequent habeas corpus proceedings. Wojtycha's appeal was resolved without argument and without opinion. The Supreme Court had obligatory jurisdiction of the case ¹⁰ rather than that of a discretionary nature as is applicable in certiorari procedures. It was therefore an appeal which the Court was required to decide on the issue of unconstitutionality and which we should assume it did. To some extent the situation is similar to that of an appeal from a statutory three-judge court which the Supreme Court may determine by a summary affirmance. See R. Stern & E. Gressman, Supreme Court Practice 233 (4th ed. 1969).

The adjudicatory effect of a dismissal for a lack of a substantial federal question has triggered a lively debate among scholars. But we agree with our brothers in the Second Circuit that the inferior federal courts are bound by the Supreme Court's pronouncement on a case's lack of substantiality. United States ex rel. Epton v. Nenna, 446 F.2d 363 (2d Cir.), cert. denied,404 U.S. 948, 92 S.Ct. 282, 30 L.Ed.2d 265 (1971); Port Authority Bondholders v. Port of New York Authority, 387 F.2d 259 (2d Cir. 1967). See also Cross v. Bruning, 413 F.2d 678 (9th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 437 (1969). ¹¹ We need not enter the controversy over the precedential effect of such decisions because the issues here were between the parties to this proceeding. See Mercado v. Rockefeller, 502 F.2d 666 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975). The Supreme Court has already ruled that...