State v. Fontano, No. A--396

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtJAYNE
Citation97 A.2d 498,26 N.J.Super. 166
Docket NumberNo. A--396
Decision Date08 June 1953
PartiesSTATE v. FONTANO.

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.

Page 168

[97 A.2d 499] 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

Page 169

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.

Page 170

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[97 A.2d 500] 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...

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10 practice notes
  • Worbetz v. Goodman, No. A--632
    • United States
    • New Jersey Superior Court – Appellate Division
    • November 13, 1957
    ...hesitated to 'ascribe influential, but not necessarily controlling, weight to the findings in the prior proceeding' (State v. Fontano, 26 N.J.Super. 166, 97 A.2d 498, 501 (App.Div.1953), affirmed sub nom. State v. Fontana, 14 N.J. 173, 101 A.2d 559 (1954); State v. Janiec, 15 N.J.Super. 445......
  • State v. De Lucia, No. A--312
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 22, 1960
    ...absence of any material change of circumstances, results in the ascription of great weight to the prior proceedings. State v. Fontano, 26 N.J.Super. 166, 172, 97 A.2d 498 (App.Div.1953), affirmed 14 N.J. 173, 101 A.2d 559 (1954). Cf. Leith v. Horgan, 13 N.J. 467, 472, 100 A.2d 175 (1953); 3......
  • Application of Dandridge, Civ. A. No. 684-60.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 19, 1960
    ...make successive applications for the writ, and to have each of his petitions judicially scrutinized. State v. Fontano, App.Div. 1953, 26 N.J.Super. 166, 97 A.2d 498, affirmed 14 N.J. 173, 101 A.2d 559, certiorari denied 1954, 347 U.S. 945, 74 S.Ct. 641, 98 L.Ed. 1093. See also State v. Fors......
  • State v. Rose, No. 8943
    • United States
    • New Jersey County Court
    • March 22, 1956
    ...raised new matters not theretofore considered and the Court thereupon granted the writ of Habeas corpus. State v. Fontano, 26 N.J.Super. 166, 97 A.2d 498 (App.Div.1953), affirmed 14 N.J. 173, 101 A.2d 559 The hearing on the new writ was limited to the new issues raised in the certification ......
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10 cases
  • Worbetz v. Goodman, No. A--632
    • United States
    • New Jersey Superior Court – Appellate Division
    • November 13, 1957
    ...hesitated to 'ascribe influential, but not necessarily controlling, weight to the findings in the prior proceeding' (State v. Fontano, 26 N.J.Super. 166, 97 A.2d 498, 501 (App.Div.1953), affirmed sub nom. State v. Fontana, 14 N.J. 173, 101 A.2d 559 (1954); State v. Janiec, 15 N.J.Super. 445......
  • State v. De Lucia, No. A--312
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 22, 1960
    ...absence of any material change of circumstances, results in the ascription of great weight to the prior proceedings. State v. Fontano, 26 N.J.Super. 166, 172, 97 A.2d 498 (App.Div.1953), affirmed 14 N.J. 173, 101 A.2d 559 (1954). Cf. Leith v. Horgan, 13 N.J. 467, 472, 100 A.2d 175 (1953); 3......
  • Application of Dandridge, Civ. A. No. 684-60.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 19, 1960
    ...make successive applications for the writ, and to have each of his petitions judicially scrutinized. State v. Fontano, App.Div. 1953, 26 N.J.Super. 166, 97 A.2d 498, affirmed 14 N.J. 173, 101 A.2d 559, certiorari denied 1954, 347 U.S. 945, 74 S.Ct. 641, 98 L.Ed. 1093. See also State v. Fors......
  • State v. Rose, No. 8943
    • United States
    • New Jersey County Court
    • March 22, 1956
    ...raised new matters not theretofore considered and the Court thereupon granted the writ of Habeas corpus. State v. Fontano, 26 N.J.Super. 166, 97 A.2d 498 (App.Div.1953), affirmed 14 N.J. 173, 101 A.2d 559 The hearing on the new writ was limited to the new issues raised in the certification ......
  • Request a trial to view additional results

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