Kelly v. Smith, 76 C 850.
Decision Date | 17 January 1977 |
Docket Number | No. 76 C 850.,76 C 850. |
Parties | Michael KELLY, Petitioner, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent. |
Court | U.S. District Court — Eastern District of New York |
Eleanor Jackson Piel, New York City, for petitioner.
Louis J. Lefkowitz, Atty. Gen., Ralph McMurry, New York City, for respondent.
Petitioner was convicted of the possession and sale of drugs in the Supreme Court of Kings County on March 14, 1972. On November 28, 1973, a coram nobis petition under New York Criminal Procedure Law § 440.10 was filed. Petitioner charged illegal grand jury composition by systematic exclusion of blacks. No objection to grand jury composition had been made at trial. Relief was denied by the Appellate Division on February 11, 1974, affirmed by the New York Court of Appeals on April 2, 1974. This petition for federal habeas corpus relief, containing the same charges as made in the State proceedings, was filed on July 20, 1974 in the Western District of New York, and was transferred on May 6, 1976 to this court.
The Attorney General concedes the issue of exhaustion, reporting in a memorandum that records of the § 440.10 motion reveal a denial on the merits by the Appellate Division.
Here, the court concludes that consideration by the New York courts of petitioner's claim is sufficient to exhaust State remedies for the purposes of 28 U.S.C. § 2254(b).
In Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), the Supreme Court ruled that where State law imposed a waiver for failure to timely object to an unconstitutional grand jury indictment, federal courts would deny habeas corpus relief on the basis of "considerations of comity and concerns for the orderly administration of criminal justice." 425 U.S. at 539, 96 S.Ct. at 1710. A petitioner who failed to make a timely objection would be allowed a federal collateral attack only upon a showing of cause for the failure and a showing of actual prejudice.
Petitioner in the instant case failed to object within the time limit set by N.Y. CPL § 210.20, and offers no explanation or showing of actual prejudice.
Although the New York statute does not explicitly provide for waiver, the New York courts have by no means "declined to impose a waiver." Paciona v. Marshall, 45 A.D.2d 462, 359 N.Y.S.2d 360 (4th Dept.), aff'd on other grounds, 35 N.Y.2d 289, 360 N.Y.S.2d 882, 319 N.E.2d 199 (1974), holds that a failure to timely object to grand jury composition results in waiver. This case was decided after petitioner's conviction, but it confirms the natural assumption that the very existence of a statutory time limit logically implies waiver. Not only had a federal court in 1970 perceived a waiver result in the statute, U.S.A. ex rel. Sabella v. Follette, 316 F.Supp. 452 (S.D.N.Y.1970), but the New York decisions reveal a policy of routine denial of untimely objections except in extraordinary circumstances. People v. Percy, 74 Misc.2d 522, 345 N.Y.S.2d 276, aff'd, 45 A.D.2d 284, 358 N.Y.S.2d 434 (2d Dept. 1973); People v. Tebsherany, 34 A.D.2d 1045, 312 N.Y.S.2d 154 (3rd Dept. 1970); People v. Hunt, 32 A.D.2d 572, 298 N.Y.S.2d 1007 (3d Dept. 1969); People v. Caron, Co.Ct., 121 N.Y.S.2d 404 (1953).
The facts of these cases suggest that the New York courts will not consider an untimely objection to grand jury composition absent an explanation for the failure to timely object and a showing of prejudice. This is exactly the sort of situation in which the Francis court intended "considerations of comity and concerns for the orderly administration of criminal justice" to apply.
One last problem remains. Francis was not decided until after petitioner had filed his habeas corpus petition. This fact raises the issue of retroactivity.
Chevron Oil Co. v. Huson, 404 U.S. 97 at 106, 92 S.Ct. 349 at 355, 30 L.Ed.2d...
To continue reading
Request your trial-
Guyton v. LeFevre
...v. Harris, 650 F.2d 447, 452 (2d Cir. 1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982); Kelly v. Smith, 425 F.Supp. 184, 185 (E.D.N.Y.1977).3 On this petition, respondent concedes petitioner has exhausted his state remedies but argues that his claims are barred from ......
- Kelley v. Kelley, Civ. A. No. 760994.