Schechtman v. Foster, 132

• Decision Date: 04 February 1949
• Docket Number: Docket 21177.,No. 132,132
• Citation: 172 F.2d 339
• Parties: SCHECHTMAN v. FOSTER, Warden.
• Court: U.S. Court of Appeals — Second Circuit

172 F.2d 339 (1949)

SCHECHTMAN v. FOSTER, Warden.

No. 132, Docket 21177.

United States Court of Appeals Second Circuit.

February 4, 1949.

Henry Schechtman, of Auburn, pro se., for relator.

Miles F. McDonald, Dist. Atty., of Brooklyn, N. Y., and Aaron Nussbaum, of Brooklyn, N. Y., for respondent.

The relator filed a brief and reply brief pro se.

Aaron Nussbaum, as amicus for the State of New York.

Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.

L. HAND, Chief Judge.

The relator appeals from an order of the District Court, which dismissed his petition for a writ of habeas corpus to release him from custody under a conviction for robbery, first degree, in the County Court of Kings County, New York, on October 17, 1938. The petition was filed on July 9, 1948, and was based upon a single ground: that the conviction had been obtained upon perjured testimony which the prosecution knew to be such. The facts as they appear in the petition and in a supporting affidavit of the relator were as follows. Schechtman was convicted as one of three men who attempted to rob the drugstore of one, Muller, in Brooklyn, on March 22, 1937. Two of these men, Grimaldi and Gubitosi, were arrested within an hour and were convicted on May 17, 1937; the third escaped. The only question at Schechtman's two trials — one in July, 1938, which ended in a disagreement, and the other in September of that year — was whether he was the third robber. The testimony identifying him as such was that of Muller, who swore that he saw him in the store with Grimaldi and Gubitosi, and of two policemen, who were cruising in the neighborhood in a patrol car, twenty minutes after the robbery, and who saw three men nearby whom they chased. Of these they succeeded in arresting Grimaldi and Gubitosi; but the third escaped, and him they professed at the trial to identify as Schechtman. Muller swore that he had run upstairs to fetch his revolver as soon as the robbers left; and that, when he came down, he chased three men. In August, 1946, Grimaldi was transferred to Auburn Prison, where Schechtman learned from him that upon Grimaldi's trial Muller had sworn that three men had entered his drug store; that one had left and that the other two had followed; that he, Muller, had then run upstairs, fetched his revolver, come down and chased two men until they had reached the car of a witness, named Montefusco, half a block from the store; and that Muller had then seen the two men run down an alley. Grimaldi also told Schechtman that Montefusco had sworn that he was entering his residence when two men — whom he identified as Grimaldi and Gubitosi — came up and tried to enter his car; that at that moment Muller had arrived and that he and Muller drove off the two men. Grimaldi also said that the two policemen had sworn that about twenty minutes after the robbery they had arrived at a place about three blocks away from the store and had chased and captured two men. Schechtman was not arrested for this crime until January, 1938, when he was under arrest for another crime, and it was then that Muller identified him as the third robber. His argument is that this evidence, which must be taken as true — since the judge dismissed the petition without a hearing — shows that the prosecution knew that Muller and the policemen were perjuring themselves, when it put them on the stand to tell their divergent stories of three men instead of two; and that this conclusion is confirmed by its failure to call Montefusco who would have said that only two men tried to board his car.

Schechtman appealed from his conviction, which was affirmed by the Appellate Division without opinion; and the Court of Appeals denied leave to appeal. We will ignore numerous unsuccessful efforts, which he made in the state court before 1943, by habeas corpus, mandamus or certiorari, and begin with July 1, 1942, when Grimaldi furnished him with an affidavit that the two policemen had sworn upon his, Grimaldi's, trial that they had seen only two men. Based upon this, on July 14, 1943, Schechtman petitioned the County Court for a writ, coram nobis, on the ground that his conviction had been obtained upon perjured testimony in violation of his constitutional rights. This writ was denied on October 23, 1943, and Schechtman appealed; but since no appeal lay at that time, this was fruitless; and he did not apply for certiorari to the Supreme Court. On November 7, 1946, he filed a second petition for a writ, coram nobis — this time with the assistance of counsel — in which he set forth the divergence in the testimony of Muller, which by hypothesis he had not known in 1943, as well as that of the policemen, on which he had relied in the first petition. The County Judge denied this writ on December 23, 1946, without opinion, and he still could not appeal from such an order; but again he did not seek certiorari from the Supreme Court. In April, 1947, the statute was amended to allow an appeal from an order denying the writ, coram nobis, and Schechtman filed his third petition in which he added to what he had alleged in his two earlier petitions, the prosecution's failure to call Montefusco, which he had not learned until November 15, 1946. Another judge denied this petition also without opinion; and Schechtman appealed to the Appellate Division and moved for leave to proceed in forma pauperis. Leave was denied without opinion in April, 1948, and he filed a petition in the Supreme Court for certiorari to that denial in May, 1948, which was denied on May 17th. In October the appeal from...