Coleman v. Denno

• Decision Date: 25 May 1962
• Citation: 205 F. Supp. 510
• Parties: In the Matter of the Application for a Writ of Habeas Corpus by David L. COLEMAN, Petitioner, v. Wilfred L. DENNO and Edward S. Silver, Respondents.
• Court: U.S. District Court — Southern District of New York

205 F. Supp. 510

In the Matter of the Application for a Writ of Habeas Corpus by David L. COLEMAN, Petitioner, v. Wilfred L. DENNO and Edward S. Silver, Respondents.

United States District Court S. D. New York.

May 25, 1962.

Norman Redlich, Daniel A. Gutterman, New York City, for petitioner.

Edward S. Silver, Dist. Atty., Kings County, New York City, for respondents, William I. Siegel, Asst. Dist. Atty., New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, for respondent Warden, Gretchen W. Oberman, Asst. Atty. Gen., New York City, of counsel.

SUGARMAN, District Judge.

On February 8, 1960 a grand jury in Kings County indicted petitioner David Coleman, charging that on or about November 27, 1959 he did, by striking, choking, strangulation and asphyxiation, cause the death of one Margaret O'Meara.

Represented by assigned counsel, Coleman came to trial before a judge and jury in the County Court of Kings County on October 17, 1960 and was on October 21, 1960 found guilty of murder in the first degree under the felony portion of the appropriate statute; the jury making no recommendation.

On November 10, 1960 the judge in the Kings County Court entered judgment of conviction as found by the jury as aforesaid and sentenced petitioner Coleman to be executed during the week of December 18, 1960.

With the aid of assigned counsel, petitioner Coleman appealed to the Court of Appeals of the State of New York, which on July 7, 1961 (10 N.Y.2d 765, 219 N.Y.S.2d 612, 177 N.E.2d 53) affirmed the judgment of his conviction and set the time for his execution during the week beginning August 14, 1961.

Thereupon, petitioner Coleman pro se moved for reargument of the affirmance of his conviction and for the assignment of counsel to prosecute said reargument.

On October 5, 1961 the Court of Appeals of the State of New York granted Coleman's motion for the assignment of counsel to represent him on the reargument in that court and appointed the same attorney who had by assignment represented Coleman on his appeal from the conviction, to submit such papers or statements deemed advisable on the motion for reargument, in addition to those submitted by respondent Coleman pro se (10 N.Y.2d 815, 221 N.Y.S.2d 520, 178 N.E.2d 234). Apparently the motion for reargument was accompanied by a motion to amend the remittitur.

On December 7, 1961 the Court of Appeals of the State of New York denied petitioner Coleman's motion for reargument of the affirmance of his conviction and granted Coleman's motion to amend the remittitur by requesting the return of the remittitur and upon its return directing its amendment to the extent of stating that on the motion for reargument there was presented an alleged Federal question as to whether the rights of the defendant under the Fifth and Fourteenth Amendments of the Constitution of the United States were violated by the remarks of the prosecutor in summation and that the Court of Appeals held that there was no such violation (10 N.Y.2d 1008, 224 N.Y.S.2d 686).

On December 12, 1961 the Chief Judge of the Court of Appeals of the State of New York granted petitioner Coleman a stay of his execution, limited to 45 days to enable petitioner Coleman to apply to the United States Supreme Court for a writ of certiorari.

On December 14, 1961 petitioner Coleman applied to the Court of Appeals of the State of New York for an order assigning counsel to aid Coleman in the preparation and filing of his petition for certiorari in the Supreme Court of the United States and to perform such other legal services on Coleman's behalf as the requested assigned counsel might deem appropriate.

On January 11, 1962 petitioner Coleman's application for assignment of counsel to prosecute a writ of certiorari in the Supreme Court of the United States was denied by the Court of Appeals of the State of New York. (This decision does not appear to have been reported.)

On January 23, 1962 the Chief Judge of the Court of Appeals of the State of New York extended the stay of Coleman's execution until February 15, 1962 to allow for the filing of a petition for a writ of certiorari in the Supreme Court of the United States.

On February 8, 1962 petitioner Coleman submitted to the Court of Appeals of the State of New York an application for its reconsideration of its order of January 11, 1962, denying him the assignment of counsel to prosecute a writ of certiorari in the Supreme Court of the United States, claiming that such denial violated the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States.

On February 14, 1962 petitioner Coleman applied for a writ of certiorari in the Supreme Court of the United States for review of the order of the Court of Appeals of the State of New York made January 11, 1962, which denied his application for the assignment of counsel by the Court of Appeals of the State of New York to prosecute a writ of certiorari in the Supreme Court of the United States.

Petitioner Coleman coupled his application in the Supreme Court of the United States on February 14, 1962 with a request that the Supreme Court of the United States extend the 90-day period within which under Rule 22 of the Supreme Court Rules, 28 U.S.C.A., Coleman was required to file a petition for a writ of certiorari to review the affirmance of his conviction, urging that a determination whether the prosecution's comments at his trial violated Federal constitutional guarantees, be deferred until a resolution of his claim that Federal constitutional guarantees were denied him when the Court of Appeals of the State of New York refused to assign counsel to represent him in his application in the Supreme Court of the United States for a writ of certiorari.

On February 22, 1962 the Court of Appeals of the State of New York denied petitioner Coleman's motion of February 8, 1962 for reconsideration of its denial on January 11, 1962 of his application for the assignment of counsel to prosecute his petition for writ of certiorari in the Supreme Court of the United States (11 N.Y.2d 768, 227 N.Y.S.2d 19, 181 N.E.2d 763).

On March 19, 1962 the Supreme Court of the United States denied Coleman's petition for a writ of certiorari (369 U.S. 826, 82 S.Ct. 843, 7 L.Ed.2d 791) without commenting upon the first branch thereof, to wit, Coleman's contention that he was entitled to the assignment by the Court of Appeals of the State of New York of counsel to prosecute his writ of certiorari in the Supreme Court of the United States and without granting the second branch requesting an extension of the time in which he might petition the Supreme Court of the United States for a writ of certiorari to review the validity of his conviction.

Thereupon the District Attorney of Kings County moved before the Court of Appeals of the State of New York for the fixation of a new date for petitioner Coleman's execution.

On March 20, 1962 Professor Norman Redlich, an attorney and counselor at law, duly admitted to practice in the State of New York, wrote to the Court of Appeals of the State of New York requesting that a new date of execution not be fixed until counsel had been assigned to Coleman.

On April 5, 1962 the Court of Appeals of the State of New York fixed the week beginning May 7, 1962 as the date for Coleman's execution and apparently addressing itself to the aforesaid letter of Professor Redlich denied "the cross motion for assignment of counsel".

On April 26, 1962 Judge Archie O. Dawson of this court on Coleman's petition wherein Coleman is represented by Professor Norman Redlich and another attorney, granted Coleman leave to proceed in this court in forma pauperis, granted an order that the District Attorney of Kings County and the Warden of Sing Sing Prison show cause why a writ of habeas corpus should not issue on Coleman's behalf, stayed Coleman's execution until the determination of the said application for a writ of habeas corpus and directed that the respondent Warden retain petitioner Coleman in the said Warden's custody within this district.

Petitioner Coleman is presently imprisoned in the death house at Sing Sing State Prison, awaiting the...