Application of Galante
Decision Date | 26 March 1970 |
Docket Number | No. 1083.,1083. |
Citation | 311 F. Supp. 732 |
Parties | Application of Carmine GALANTE, Petitioner. |
Court | U.S. District Court — Middle District of Pennsylvania |
Peyton Ford, Ford, Ayer, Horan & Lester, Washington, D. C., Roy M. Cohn, Saxe, Bacon & Bolan, New York City, Clyde E. Williamson, Williamson & Cupp, Williamsport, Pa., for petitioner.
S. John Cottone, U. S. Atty., Scranton, Pa., for the United States.
Before the Court is an application for a Writ of Habeas Corpus filed by Carmine Galante, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, within the jurisdiction of the Middle District of Pennsylvania. Petitioner was convicted by a jury in the Southern District of New York on June 25, 1962, of conspiracy to violate the Federal narcotics law and was sentenced to a prison term of twenty years and fined $20,000.00. The Second Circuit Court of Appeals affirmed, sub nom. United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963), and thereafter the Supreme Court denied a petition for a Writ of Certiorari and a petition for rehearing. A motion for reduction of sentence pursuant to Fed.R.Crim.P. 35 was filed with and denied by the New York sentencing Court. Thus far, petitioner has filed no Section 2255 motion, 28 U. S.C. § 2255, with the sentencing Court to vacate his sentence. Consequently, the Rule to Show Cause issued by this Court upon the filing of the present application ordered the parties to brief the threshold jurisdictional question, viz., whether petitioner must first apply to the New York sentencing Court for relief, prior to a formal hearing on the merits of the application.
The thrust of petitioner's argument is that his remedy under Section 2255 in the sentencing Court is "ineffective"1 to test the legality of his detention. He contends that any petition he files with the sentencing Court in New York will be controlled by what he considers to be adverse decisional law in the Second Circuit, which will result in a denial of his petition. Petitioner believes that the law in the Third Circuit on the subject of the right to the assistance of counsel and the right to the effective assistance of counsel is more favorable to him and, consequently, he should be allowed to take advantage of it.2 He relies upon the reasoning of three cases: Rawls v. United States, 236 F.Supp. 821 (W.D.Mo.1964); Wells v. Swope, 121 F.Supp. 718 (N.D. Cal.1954), rev'd sub nom. Madigan v. Wells, 224 F.2d 577 (9th Cir. 1955); and Mugavero v. Swope, 86 F.Supp. 45 (N.D. Cal.1949), rev'd on other grounds, 188 F.2d 601 (9th Cir. 1951).
In deciding this case there is no need for an in-depth examination of the history and purpose of Section 2255 proceedings for this has been clearly set forth by the Supreme Court. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The very issue presented here has been considered and carefully analyzed in C. Wright, Federal Practice and Procedure: Criminal § 591, as follows:
Accordingly, I am persuaded by Professor Wright's resolution of the problem and decline to accept the reasoning of the authorities presented by petitioner and...
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State ex rel. Huskey v. Hatler
...when a statute prescribes the particular county in which they must be brought. 92 C.J.S. Venue § 8 (1955). See also, Application of Galante, 311 F.Supp. 732 (D.C. Pa. 1970), aff'd 437 F.2d 1164 (3d Cir. The decrees of the Court of Appeals and of the Chancery Court are reversed and the petit......
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Edwards v. Walker, 72-1777
...who are also in California, are essential to their claims. This very issue has been considered and ruled upon in Application of Galante, 311 F.Supp. 732, 733, (M.D.Pa. 1970), which quotes the following analysis by a leading authority, C. Wright, Federal Practice and Procedure, Criminal § "T......