Finetti v. Harris

• Decision Date: 12 September 1979
• Docket Number: D,No. 621,621
• Citation: 609 F.2d 594
• Parties: Vito FINETTI, Petitioner-Appellee, v. David HARRIS, Superintendent of Greenhaven Correctional Facility, Respondent-Appellant. ocket 78-2145.
• Court: U.S. Court of Appeals — Second Circuit

Page 594

609 F.2d 594

Vito FINETTI, Petitioner-Appellee, v. David HARRIS, Superintendent of Greenhaven Correctional Facility, Respondent-Appellant.

No. 621, Docket 78-2145.

United States Court of Appeals Second Circuit.

Argued Feb. 9, 1979.

Decided Sept. 12, 1979.

Charlotte C. Lee, Deputy Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., and Samuel J. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondent-appellant.

John J. Hayden, Goshen, N. Y., for petitioner-appellee.

Before WATERMAN, MANSFIELD and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

On this appeal from a judgment entered in the Southern District of New York, Charles E. Stewart, District Judge, 460 F.Supp. 1069, granting a state prisoner's petition for a writ of habeas corpus, the issues presented are virtually identical to those raised on appeal before this Court in Brown v. Wilmot, 572 F.2d 404 (2 Cir. 1978) (per curiam), namely: (1) whether petitioner sufficiently exhausted his state remedies pursuant to 28 U.S.C. § 2254(b) and (c) (1976) to entitle him to apply for federal habeas corpus relief; and (2) if he has, whether the district court erred in granting the petition on the ground that a state court's denial of bail pending appeal without giving a statement of reasons for such denial is arbitrary per se and a violation of the Eighth and Fourteenth Amendments.

For the reasons below, we hold (1) on the facts of this case, that the district court correctly held that petitioner has done all that is required for purposes of the exhaustion requirement and therefore is entitled to apply for federal habeas corpus relief; but (2) that the district court erred in holding that a state court's denial of bail pending appeal without giving a statement of reasons is arbitrary per se. Only if there is no rational basis in the record to support the denial of bail may there be a violation of a state prisoner's constitutional rights. Since there is adequate support in the record in the instant case to justify the denial of bail, we reverse the judgment of the district court which granted the petition for a writ of habeas corpus.

I.

Petitioner Vito Finetti was convicted, after a jury trial in the County Court, Orange County, New York, of the crimes of robbery in the first degree and grand larceny in the second degree. He was sentenced on February 2, 1978 to an indeterminate term of imprisonment of 81/3 years to 25 years. He presently is incarcerated at the Greenhaven Correctional Facility, Stormville, New York.

On February 9, 1978, Finetti filed a notice of appeal to the Appellate Division, Second Department, from his judgment of conviction. ¹ At that time, his motion for a stay and for bail pending appeal, pursuant to N.Y.Crim.Proc.Law § 460.50 (McKinney 1971), was denied by Presiding Justice Milton Mollen of the Appellate Division, Second Department. No reasons were stated by Justice Mollen for denying bail.

Finetti then filed his first petition for a writ of habeas corpus in the District Court for the Southern District of New York. He alleged that the Appellate Division's denial of bail pending appeal without a statement of reasons was unconstitutional. Relying on our decision in Brown v. Wilmot, supra, Judge Stewart on April 7, 1978 denied the petition without prejudice on the ground that Finetti had failed to exhaust his state remedies.

Finetti then moved in the Appellate Division for reargument ² of that court's order of February 9, 1978 which denied bail pending appeal. On May 29, 1978, the Appellate Division denied the motion for reargument.

On June 15, 1978, Finetti attempted to file a petition for a writ of habeas corpus in the Appellate Division, Second Department, alleging that the denial of bail pending appeal without a statement of reasons was unconstitutional. The clerk of the Appellate Division informed Finetti's attorney by a letter dated June 19, 1978 that such an application for a writ of habeas corpus "may not be entertained because there is no basis for a finding of illegal detention." ³

On July 2, 1978, following receipt of this letter, Finetti filed a second petition for a writ of habeas corpus in the Southern District of New York.

In a carefully reasoned opinion filed November 16, 1978, Judge Stewart first considered whether Finetti had exhausted available state remedies under Brown v. Wilmot, supra. He concluded that he had. The judge stated that Finetti's state petition for a writ of habeas corpus had been frustrated, not because of any judicial action, but because of an act of the clerk which is not appealable. The only alternatives available to Finetti would be to require him to return to the clerk in an attempt to persuade the clerk to accept the petition or to commence a collateral proceeding, such as mandamus, to compel the clerk to accept the petition. The judge concluded that such extraordinary measures were not required under Brown.

He then considered the merits of Finetti's constitutional claims. After examining the various conflicting decisions on the question, he stated that, while there is not an absolute federal constitutional right to bail pending appeal, once a state provides for bail pending appeal, it may not be denied without a statement of reasons for the denial. He concluded that denial of bail here pending appeal without a statement of reasons was arbitrary per se and as such violated petitioner's constitutional rights.

Accordingly, Judge Stewart conditionally granted the petition for a writ of habeas corpus. He ordered a stay of its enforcement for twenty days and authorized its dissolution if the state court within that period were to set forth a statement of reasons for its denial of bail or, on motion of petitioner, were to provide a hearing on the bail issue followed by either a grant of reasonable bail or a statement of reasons supporting its denial of bail.

From the judgment entered on Judge Stewart's opinion, the instant appeal has been taken.

II.

Against this statement of the facts and prior proceedings, we turn first to the question whether Finetti has exhausted his available state remedies. We agree with Judge Stewart that he has.

It is elementary under Picard v. Connor, 404 U.S. 270 (1971), that a state prisoner who petitions for a writ of habeas corpus under 28 U.S.C. § 2254 (1976) first must present to the state court "the Same claim he urges upon the federal courts." United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2 Cir.), Cert. denied, 409 U.S. 1045 (1972) (emphasis in original). We consistently have required exhaustion, recognizing that it is not a mere "formal hurdle placed in the way of meritorious claims, but an essential element of federalism in the administration of criminal justice." Fielding v. LeFevre, 548 F.2d 1102, 1106 (2 Cir. 1977). Indeed, unless a state prisoner first gives the state courts "an opportunity to apply controlling legal principles" to the claims asserted, Picard v. Connor,supra, 404 U.S. at 277, we have held that dismissal by the federal courts is required. Wilson v. Fogg, 571 F.2d 91, 92 (2 Cir. 1978); Fielding v. LeFevre, supra, 548 F.2d at 1107.

It is further well established, as Judge Stewart held below, that there is no absolute federal constitutional right to bail pending appeal after a conviction in the state courts. Brown v. Wilmot, supra, 572 F.2d at 405; Roberson v. Connecticut, 501 F.2d 305, 308 (2 Cir. 1974); People ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267, 268 (1st Dept.), Motion for leave to appeal withdrawn, 17 N.Y.2d 422, 216 N.E.2d 32, 268 N.Y.S.2d 1028 (1966). Moreover, N.Y.Crim.Proc.Law § 460.50 provides that only one application for bail pending appeal may be made; and since there is no statutory provision permitting direct appeal from an order denying bail pending appeal, such an order is not appealable as of right. See People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 500, 255 N.E.2d 552, 555, 307 N.Y.S.2d 207, 210 (1969); People ex rel. Epton v. Nenna, supra. We therefore agree with Judge Stewart that Finetti has exhausted all available means of direct appeal to the state appellate courts from the order denying bail.

This, however, does not end our inquiry. In Brown v. Wilmot, supra, we held that, even though there is no right to a direct appeal from an order denying bail pending appeal, exhaustion requires a state prisoner to have commenced a state habeas corpus proceeding for the purpose of raising the same constitutional challenges to the denial of bail as he seeks to present in his federal habeas corpus proceeding. While it was unclear at the time of Brown whether such a collateral proceeding was available under New York law to challenge the constitutionality of a refusal to grant bail without a statement of reasons, ⁴ we held that it was "(in)appropriate for this court to guess what constitutional issues New York courts will or will not entertain in a habeas proceeding." 572 F.2d at 406. Considerations of comity required that " '(e)ven if there were some doubt as to the availability of relief in the New York courts, we still would give its courts the first chance to review their alleged errors so long as they have not authoritatively shown that no further relief is available.' United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964)." Wilson v. Fogg, supra, 571 F.2d at 95, Cited in Kaplan v. Bombard, 573 F.2d 708, 710 & n.1 (2 Cir. 1978).

In the instant case, Finetti attempted to file a state petition for habeas corpus relief, as suggested by our decision in Brown. The clerk of the Appellate Division, however, rejected the petition in the belief that such a petition "may not be entertained because there is no basis for a finding of illegal detention." Since the clerk's "decision" apparently is not appealable, See People ex rel. Wilkes v. Fay, 27 A.D.2d 860, 278 N.Y.S.2d 581 (2nd Dept. 1967), all...