Ellman v. Davis
| Decision Date | 15 December 1994 |
| Docket Number | No. 53,D,53 |
| Citation | 42 F.3d 144 |
| Parties | Kenneth ELLMAN, Petitioner-Appellee, v. R.E. DAVIS, Warden Westchester County Penitentiary, Respondent-Appellant. ocket 93-2819. |
| Court | U.S. Court of Appeals — Second Circuit |
Kenneth Ellman, pro se.
Pamela Mann, Asst. Atty. Gen., State of N.Y. (G. Oliver Koppell, Atty. Gen. of the State of N.Y., Sean Delany, Asst. Atty. Gen., Charities Bureau, of counsel), for respondent-appellant.
Before: VAN GRAAFEILAND, MINER and McLAUGHLIN, Circuit Judges.
Respondent-appellant R.E. Davis, Warden of the Westchester County Penitentiary, appeals from a judgment entered on December 2, 1993 in the United States District Court for the Southern District of New York (Brieant, J.), on a cross-motion for summary judgment, granting petitioner-appellee Kenneth Ellman's petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. Sec. 2254. The court found that petitioner had exhausted his state court remedies and, in the alternative, if he had not exhausted, that he had demonstrated that the remedies available to him in the state courts were ineffective to protect his rights. The court also found for Ellman on the merits.
The facts surrounding Ellman's incarceration involve a maze of state court proceedings that started in November of 1987, when the New York State Attorney General commenced an action to dissolve the Westchester County Society for the Prevention of Cruelty to Children, Inc. (the "Society"), a non-profit organization chartered under New York State law. Ellman was an officer of the Society and was named in the suit in his official capacity. As part of the dissolution proceeding, the New York State Supreme Court (the "trial court") ordered Ellman to surrender certain handguns that he had obtained in connection with his position as a peace officer in the Society. When Ellman's peace officer status was revoked in May of 1988, he was ordered to comply with the state's handgun registration requirements, under N.Y.Penal Law Sec. 400.00(12-c), within twenty days and submit proof of compliance to the court. On July 27, 1989, because Ellman still had not complied with the May 1988 order, the trial court ordered him to surrender all handguns for which he had not obtained a New York State license.
Eventually, Ellman obtained a license for his handguns in New Jersey, where he resided. In November of 1990, he moved the trial court for an order modifying that court's July 27, 1989 order insofar as it required him to surrender all handguns for which no New York State license had been obtained. The trial court denied this motion and held a contempt hearing, in which it ruled that Ellman was in civil contempt and sentenced him to ninety days in prison. The trial court, by order dated February 5, 1991, stated that if Ellman surrendered his handguns by February 8, 1991, it would vacate the contempt order and void his sentence. Ellman failed to surrender the handguns by the February 8th deadline, and the trial court issued an arrest warrant based on the civil contempt adjudication.
Although Ellman attempted to appeal the trial court's civil contempt adjudication to the Appellate Division, that court dismissed this appeal on the ground that Ellman was a "fugitive from justice and [was] unavailable to obey the mandate of the court." Ellman's leave to appeal to the New York Court of Appeals also was dismissed on the ground that "the order sought to be appealed from does not finally determine the action."
While the appeal was pending, the trial court had entered a final judgment dissolving the Society. However, the trial court retained jurisdiction over the action for the purpose of enforcing the judgment and order. The Attorney General also had moved for an adjudication of criminal contempt based on Ellman's willful disobedience of the trial court's July 31, 1989 and February 5, 1991 orders. The trial court granted the state's motion and ordered that Ellman be sentenced to two thirty-day prison terms for each criminal contempt charge, and separate arrest warrants were issued. At that point, there were three warrants for Ellman's arrest pending in state court.
On July 24, 1992, Ellman was apprehended in New York pursuant to the three arrest warrants, and, on July 27, 1992, the trial court signed an Order of Commitment remanding Ellman to the custody of the Westchester County Department of Correction based on the prior civil contempt adjudication. Ellman commenced a state habeas action on September 24, 1992, in which he claimed that his detention pursuant to the contempt order was illegal and violated the Due Process Clause of the United States Constitution. On September 28, 1992, the state trial court denied Ellman's habeas petition.
On October 5, 1992, the Attorney General moved to have Ellman's period of detention for civil contempt extended for his continued refusal to surrender the handguns. At the hearing, Ellman still refused to surrender his guns. Accordingly, on October 19, 1992, the trial court granted the state's motion and sentenced Ellman to a second ninety-day prison term for civil contempt. However, rather than issue an order to this effect, the trial judge subscribed his name to the "so ordered" transcript and the transcript thus subscribed was entered in the County Clerk's office. Ellman's counsel objected, explaining that the "so ordered" transcript could not function as an appealable order. Counsel never attempted to submit an order to the trial court, despite his concern about the appealability of the judge's order.
Also in October of 1992, Ellman, acting pro se, commenced two Article 78 proceedings in the state Appellate Division in which he challenged the July 27, 1992 commitment order and the October 19, 1992 recommitment order and requested a writ of prohibition based on the same due process claims he had raised in his state habeas petition. The Appellate Division denied both applications, ruling that Ellman had "failed to demonstrate a clear legal right to the relief requested which could not be otherwise safeguarded through alternative remedies." Ellman's leave to appeal to the New York Court of Appeals was denied. On November 18, 1992, Ellman, aided by counsel, again challenged the October 19th recommitment order, this time by way of a direct appeal.
On January 13, 1993, the state trial court signed an order dismissing Ellman's petition for a writ of habeas corpus, finally making it appealable. In that order, the trial court noted that it had advised Lewis & Fiore, attorneys for Ellman, to re-submit an order dismissing the petition, which the attorneys claimed they had submitted but the court had never received. Because Ellman's attorneys never re-submitted the order, the court had to prepare one on its own.
On January 14, 1993, the Attorney General moved to continue Ellman's confinement, and a recommitment order was signed. Also on that date, Ellman moved to stay enforcement of the October 19, 1992 recommitment order, the January 13, 1993 dismissal of his habeas petition, and the January 14, 1993 recommitment order, pending determination of his appeals therefrom. On March 12, 1993, the state Appellate Division denied Ellman's motion for a stay and dismissed, on its own motion, the appeal from the purported order dated October 19, 1992, stating that the October order was merely a decision, which is not appealable. The New York Court of Appeals declined to hear Ellman's appeal.
On February 2, 1993, Ellman filed an appeal challenging the January 13, 1993 dismissal of his habeas petition and the January 14, 1993 recommitment order, both then being properly signed orders of the state trial court and appealable as such. Finally, Ellman had perfected his state appeal. Nevertheless, after filing this federal habeas petition in the United States District Court for the Southern District of New York, Ellman chose not to pursue his state appeal and requested the state Appellate Division to allow him to withdraw the appeal. On May 21, 1993, the state Appellate Division granted Ellman's request. In the meantime, the state trial court signed another recommitment order for Ellman's continued civil contempt.
Ellman's federal habeas petition alleged that his continued incarceration for civil contempt violated his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. On April 16, 1993, the district court granted Ellman bail. After hearing arguments on the exhaustion issue, the district court converted the state's motion to dismiss into a motion and cross-motion for summary judgment on the ground "that the procedural issue of exhaustion of remedies [was] inextricably intertwined with the merits" of the petition. On October 12, 1993, the district court granted Ellman's cross-motion for summary judgment and issued a writ of habeas corpus, having found that Ellman had exhausted his state court remedies and that, even if he had not, he would be excused from the exhaustion requirement based upon the circumstances of the proceedings in the state court. The district court also found for Ellman on the merits. This appeal followed.
On appeal, the state argues that the district court erred in finding that Ellman had exhausted his state court remedies and in its alternative finding that the available state court remedies were ineffective to protect Ellman's rights. We agree with the state and, therefore, need not reach the merits of Ellman's habeas petition.
Under 28 U.S.C. Sec. 2254(b), before a court can address the merits of any constitutional issue raised in a petition for a writ of habeas corpus, it must find that the petitioner has "exhausted 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 ...
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