Garson v. Perlman

• Decision Date: 02 January 2008
• Docket Number: No. 07-cv-3197 (BMC).,07-cv-3197 (BMC).
• Citation: 541 F.Supp.2d 515
• Parties: Gerald GARSON, Petitioner, v. Kenneth PERLMAN, Superintendent, Mid-State Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

541 F.Supp.2d 515

Gerald GARSON, Petitioner, v. Kenneth PERLMAN, Superintendent, Mid-State Correctional Facility, Respondent.

No. 07-cv-3197 (BMC).

United States District Court, E.D. New York.

January 2, 2008.

Jeremy L. Gutman, New York, NY, for Petitioner.

Kings County District Attorneys Office, New York State Attorney Generals Office, Seth M. Lieberman, Brooklyn, NY, for Respondent.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Petitioner, a former Justice of the New York Supreme Court, has filed this petition under 28 U.S.C. § 2254 seeking review of the state court's order denying him bail pending appeal from his conviction. I find that there is no cognizable federal claim for denial of bail pending appeal under these circumstances and that petitioner has in any event failed to exhaust his state court remedies. The petition is therefore dismissed.

BACKGROUND

Following a jury trial, petitioner was convicted of one count of Bribe Receiving in the Third Degree and two counts of Receiving Reward for Official Misconduct in the Second Degree. The bribery count was based on his accepting benefits from a lawyer, turned informant, upon agreement or understanding that he would provide that lawyer with favorable treatment. The misconduct counts arose from his accepting $1000 in cash and a box of cigars on separate occasions from that same lawyer. There were two other counts that the District Attorney dismissed at the end of his case and four others on which the jury acquitted petitioner. Petitioner was sentenced to one to four years on the bribery count, and one to three years on each of the misconduct charges, all three sentences to run consecutively. Petitioner, who had been out on $15,000 bail, was remanded to custody.

Petitioner filed a notice of appeal in the Appellate Division and moved by Order to Show Cause for bail pending appeal and an immediate stay of sentence pending determination of that motion. Petitioner contended that he had meritorious claims on appeal, which he specified, and that there was no flight risk given petitioner's age (74 years old); medical problems (heart condition and recurrent bladder cancer); unfailing attendance at lengthy court proceedings; and extensive family and community ties (his wife, for example, is also a state court judge). The application for an immediate stay of sentence was orally argued before Justice Carni of the Appellate Division. He granted a temporary stay of sentence, continuing the $15,000 bail, pending submission of papers opposing the motion by the District Attorney, due within one week. The District Attorney then responded to the bail motion, submitting the 3,600 page trial transcript several days after the interim stay order, and papers in opposition to the motion several days after that.

Just over a week after the District Attorney submitted his opposing papers, Justice Carni denied the motion for bail pending appeal and vacated his earlier interim stay order. His Order did not set forth any reason for the ruling, stating only that "the motion is denied."

Petitioner commenced this habeas corpus proceeding six weeks later.

DISCUSSION

In the instant proceeding, petitioner is not challenging his conviction, but only the denial of bail pending its appeal. The issue the petition raises, as phrased by petitioner, is whether Justice Carni's decision "arbitrarily and unreasonably deprived [petitioner] of bail pending appeal in violation of the Eighth and Fourteenth Amendments of the United States Constitution."

The petition and its supporting memorandum superimpose petitioner's view of the facts of his case over the statutory considerations for bail under New. York Criminal Procedure Law § 510.30(2). These statutory factors consist of petitioner's "character, reputation, habits and mental condition;" his "employment and financial resources;" his "family ties and length of residence" in the community; his criminal record; his adherence to court schedules; the "merit or lack of merit" of his appeal; and the nature of the sentence imposed against him. Petitioner argues that all of these factors point so strongly in petitioner's favor that Justice Carni's denial of the bail motion can only be seen as arbitrary and capricious, and thus in violation of the Excessive Bail Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. Respondent opposes on the grounds that (a) petitioner has failed to exhaust his constitutional claim in state court; (b) the Supreme Court has never held that the Excessive Bail Clause of the Eighth Amendment is incorporated in the Due Process Clause of the Fourteenth Amendment, so Justice Carni's decision is not contrary to or an unreasonable application of Supreme Court authority; and (c) the facts of the case show more than arguably that bail is not warranted under the factors of § 510.30(2), so that there is nothing arbitrary about the state court's denial of bail and no federal constitutional violation.

I. Exhaustion

It is of course axiomatic that a petitioner must exhaust his state remedies before seeking federal habeas corpus relief. See 28 U.S.C. 2254. Petitioner does not dispute that. Instead, the parties disagreement devolves into a question of state law: is there any state procedure pursuant to which petitioner could raise this claim? Petitioner argues that there is not. I find that there is, or at least, it is sufficiently likely that there is that both 2254 and principles of comity require that he should have tried.

A. The Federal Claim was not raised in the Bail Application

In making the bail application itself, petitioner did not advance the claim that he makes here, i.e., that denial of bail would violate his rights under the federal constitution. The claim was therefore not exhausted in the bail application for purposes of federal habeas review.

The Second Circuit has been clear as to what must be done in state court to exhaust an issue for later federal review. It is not much, but it is more than petitioner did here. To exhaust his federal claim, a petitioner must fairly present it to the state court. There are several alternative ways to do this:

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir.1982) (en banc). It is not disputed that petitioners submission to Justice Carni does not fall into any of these categories.

Petitioner has offered no reason why the constitutional claim could not have been raised in his bail application. He suggested at oral argument that the constitutional considerations were lurking behind his application, and that I should not stand on formality considering the important interests at stake. The answer to this of course is that there are always important interests at stake in a federal habeas corpus proceeding, and the law surrounding the writ strikes a careful balance between state and federal interests. As the Supreme Court has noted:

State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. This rule of comity reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.

O'Sullivan v. Boerckel 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (internal citations omitted). The issue thus is not observance of formality for the sake of formality. Rather, comity requires that before I could find that a state court has so arbitrarily applied its own statute that it has violated the Constitution, petitioner must have given the state court the opportunity to consider that point. Without doing so, my intrusion into the case would go beyond any recognized application of federal habeas corpus principles.

I can see no reason why the claim could not have been raised. Petitioners position is akin to a defendant who objects to hearsay at trial but does not object that the hearsay violates his right to confrontation under the Sixth Amendment. In that instance, his confrontation claim is unexhausted and may not be considered in a federal habeas corpus petition. See Daye, 696 F.2d at 193 (A "defendant's claim that he was deprived of a fair trial because of the admission in evidence of a statement objectionable as hearsay would not put the court on notice that the defendant claimed a violation of his constitutional right to be confronted by his accusers."). Petitioner had an obligation to alert Justice Carni to his federal constitutional claim before raising it here.

B. Exhaustion through Collateral State Procedures

Even if there were some reason why petitioner could not have raised his federal constitutional claim in his bail application, it is possible that petitioner could have exhausted it through a state habeas corpus petition. Petitioner argues that this remedy is not available under state law, but I am not convinced.

I start with the well-established principle that if there is doubt about the availability of a state review procedure, it should be resolved in favor of requiring exhaustion. The Second...