United States ex rel. Cameron v. PEOPLE OF ST. OF NY

• Decision Date: 16 October 1974
• Docket Number: No. 74 C 1419.,74 C 1419.
• Citation: 383 F. Supp. 182
• Parties: UNITED STATES of America ex rel. Faustino CAMERON, Petitioner, v. PEOPLE OF the STATE OF NEW YORK, Respondent.
• Court: U.S. District Court — Eastern District of New York

383 F. Supp. 182

UNITED STATES of America ex rel. Faustino CAMERON, Petitioner, v. PEOPLE OF the STATE OF NEW YORK, Respondent.

No. 74 C 1419.

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

October 16, 1974.

Faustino Cameron pro se.

MEMORANDUM ORDER

NEAHER, District Judge.

Petitioner pro se seeks relief by writ of habeas corpus to determine his right to be released on bail pending his appeal of a State court conviction. The conviction resulted in a prison term of seven years, which petitioner is now serving. Petitioner's papers disclose that he moved on January 7, 1974 before a Justice of the New York State Supreme Court, Kings County, for an order staying execution of judgment and releasing him either in his own recognizance or on bail. The court on March 6, 1974 denied the stay and refused to set bail and petitioner maintains, in essence, that it was error to refuse to set bail in the circumstances of his case.

In order to qualify for habeas corpus relief, petitioner must show an infirmity of constitutional dimension in the State court proceedings. 28 U.S.C. § 2254(a). No such claim is discernible in petitioner's papers.

Viewed as a claim arising under the eighth amendment, the petition immediately encounters an insurmountable obstacle. Even assuming arguendo that eighth amendment bail rights apply to the states, it has been held that since there is no constitutional right to appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), there is no constitutional right to be free pending appeal. United States ex rel. Collins v. Jozwrak, 315 F.Supp. 188, 190 (E.D. Wis.1970); United States ex rel. Siegal v. Follette, 290 F.Supp. 632, 635 (S.D. N.Y.1968).

Although not constitutionally required, New York has provided for the possibility of bail pending appeal. The relevant statutory provisions are Criminal Procedure Law (CPL) §§ 460.50 and 510.30, McKinney's Consol.Laws, c. 11-A. CPL § 460.50(2)(a) permits a post-conviction application for a stay of execution and the fixing of bail to be made to a justice of either the State Supreme Court or the Appellate Division. Subdivision 3 of § 460.50 limits to one the number of such applications. Section 510.30 establishes guidelines for the court to follow in exercising its discretion concerning a bail application. See People v. Holder, 70 Misc.2d 819, 335 N. Y.S.2d 157 (Sup.Ct. Nassau County 1972); People v. Surretsky, 67 Misc.2d 966, 325 N.Y.S.2d 31, 33 (Sup.Ct. N.Y. County 1971).

By providing a procedure for the fixing of bail pending appeal, the New York legislature obligated the New York courts to administer it fairly. An arbitrary denial of a right created by a State legislature is a denial of due process. The inquiry, therefore, is whether petitioner in this case has alleged that his rights, as created by the New York legislature, have been capriciously ignored.

At the outset, it must be made clear that not every abuse of discretion rises to the level of a due process violation. If discretion is abused, it is for a State reviewing court to rectify, if review is permissible. It is only when the abuse of discretion is such that it consists of either a total failure to consider an application as required by law or rendering a decision on a ground which infringes on otherwise constitutionally protected areas, e. g., race, religion, that the federal court...