State v. Fontano

• Decision Date: 08 June 1953
• Docket Number: No. A--396,A--396
• Parties: STATE v. FONTANO.
• Court: New Jersey Superior Court — Appellate Division

Page 166

26 N.J.Super. 166

97 A.2d 498

STATE v. FONTANO.

No. A--396.

Superior Court of New Jersey

Appellate Division.

Submitted May 25, 1953.

Decided June 8, 1953.

Joseph James Fontano, appellant, pro se.

Donald G. Collester, Pros. of Passaic County, Clifton, for respondent.

Before Judges EASTWOOD, BIGELOW, and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

The decision in State v. Cynkowski, 10 N.J. 571, 92 A.2d 782 (1952), declared that there is no fixed limit of time within which a writ of Habeas corpus may be sought and that the court may not deny ultimate relief in such proceedings merely because the petitioner acted tardily in applying for the writ.

The present appeal introduces for decision the right of a prisoner to present a succession of petitions for the issuance of the writ, and the conclusiveness, if any, of the prior dismissals.

No one who sincerely believes in the preservation of personal liberty and the right of a prisoner to initiate a judicial inquiry concerning the legality of the incarceration would criticize the liberal policy of our courts in perpetuating the historic availability of the writ of Habeas corpus. The right of the vilest criminal, or of the most illiterate and forlorn prisoner, to the use of the writ Ad subjiciendum should never be abridged.

But in recent years the flow of applications for the writ from inmates of our penitentiaries has swollen inordinately above the rising tide of crime. Not many petitions are crudely composed, but the records on appeal are normally incomplete. Briefs are submitted by uneducated petitioners Pro se, in forma pauperis, which are replete with citations of decisions from numerous jurisdictions both domestic and foreign, and many are garnished with choice excerpts and judicially authoritative quotations. One sometimes wonders whether there is an academy of law conducted within the walls of the prison.

It is not to be inferred that the cited authorities are not instructive and amicably received, but in most instances the facts do not warrant their application.

Not only has the number of petitioners greatly increased, but the number of petitions filed by a single petitioner has also enlarged. For example, between January 1, 1937 and June 15, 1947, of the 368 petitions by inmates of Alcatraz, 45 were filed by three prisoners, 16, 15, and 14 respectively. Sixty-three prisoners filed 251 petitions. The incipient stages of a like experience are noticeable in our own and other jurisdictions. Profuse now are the petitions for Certiorari in Habeas corpus cases addressed to the United States Supreme Court.

We can envision cases where the petitioner, having been unsuccessful in a prior application, discovers a new and additional ground for the writ and in good faith again applies for its allowance. If the supplementary ground as alleged appears to be meritorious, he should not be denied the writ merely because of the prior unsuccessful application. The principle of Res adjudicata is not strictly applicable to orders denying the issuance of the writ or to those denying the discharge of the prisoner in such proceedings. Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942).

However, we have also the class of petitions presented successively by the same applicant in which the allegations are manifestly repetitious and of the same pattern. In others, the only additional matter in the subsequent petition relates to the asserted deprivation or inadequacy of some prison privilege or the impugned propriety of some disciplinary restriction. The preponderant number of falsely fabricated and unmeritorious petitions generates some justification for the apprehension that the construction of applications for writs of Habeas corpus is now a fashionable and gratifying penitentiary activity.

Nevertheless, we affirm the right of a prisoner to make successive applications and to have each of his petitions judicially scrutinized. The court may not ignore or reject such a petition solely because the petitioner has previously made one or more applications in vain. A prisoner is not limited to but one opportunity to gain his freedom. Vide, Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948).

We do not intend to imply that in the consideration of the subsequent petition the judge should entirely ignore the allegations of the applicant's former petition or petitions and the decision or decisions rendered in those proceedings. While the prior determinations are not to be recognized as conclusive, due recognition and regard should be accorded to the previous factual findings.

There are influential decisions of our federal courts, logical and justly pragmatical, supporting that avenue of judicial practice, such as those delivered in Salinger v. Loisel, supra; United States ex rel. Innes v. Hiatt, 50 F.Supp. 756 (D.C.1943), affirmed, 141 F.2d 664 (C.C.A. 3, 1944); Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857 (U.S.C.A.D.C.1945), certiorari denied, 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003 (1945); Rookard v. Huff, 79 U.S.App.D.C. 291, 145 F.2d 708 (U.S.C.A.D.C.1944); United States ex rel. Karpathiou v. Jordan, 153 F.2d 810 (C.C.A. 7, 1946), certiorari denied, 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639 (1946); Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924); United States ex rel. Bergdoll v. Drum, 107 F.2d 897, 129 A.L.R. 1165 (C.C.A. 2, 1939), certiorari denied, 310 U.S. 648, 60 S.Ct. 1098, 84 L.Ed. 1414 (1940); Price v. Johnston, supra; Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950).

It was in United States ex rel. McCann v. Thompson, 144 F.2d 604, 606, 156 A.L.R. 240 (C.C.A. 2, 1944), certiorari denied, 323 U.S. 790, 65 S.Ct. 313, ...