United States ex rel. Pugach v. Mancusi

Decision Date12 March 1970
Docket NumberNo. 67 Civ. 4844,3948,68 Civs. 2177,69 Civs. 3633,3634,3635.,67 Civ. 4844
Citation310 F. Supp. 691
PartiesUNITED STATES of America ex rel. Burton N. PUGACH, Petitioner, v. Hon. Vincent R. MANCUSI, Warden, Attica State Prison, Respondent. Burton N. PUGACH, Plaintiff, v. Paul K. McGINNIS, Commissioner of Correction of the State of New York, and Vincent R. Mancusi, Warden of Attica State Prison, Defendants.
CourtU.S. District Court — Southern District of New York



Burton N. Pugach, pro se, petitioner.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, for respondent, by Joel Lewittes, Asst. Atty. Gen., and David S. Blatt, Asst. Dist. Atty., Bronx County, of counsel.


POLLACK, District Judge.

Federal habeas corpus is sought herein by a state prisoner. These proceedings are the culmination of an "almost unparalleled succession of collateral attacks by him on his conviction both in state and federal courts".1

The matter came before this Court following a decision of the Court of Appeals for the Second Circuit reversing the denial of a hearing on petitioner's claims and remanding his petition for habeas corpus to this Court with the direction that an evidentiary hearing be held on certain of petitioner's contentions. The appellate court suggested that this petition together with others pending in the Southern and Western Districts of New York be placed in one bundle and be referred to one Judge to avoid undue drain on judicial time. Furthermore, the court said: "We also place Pugach on notice that if he has still other federal claims, these must be promptly asserted along with the ones now pending." 411 F.2d at 181.

The determination of the Court of Appeals referred to furnishes the following succinct statement of the background for all the pending matters:

Appellant Pugach, a lawyer, was indicted in 1959 by a New York grand jury for a number of crimes arising out of an alleged conspiracy whereby, using Al Smith Newkirk as an intermediary, he hired Heard Harden and Walter McMillian to maim his former girl friend, Linda Riss, by hurling lye in her face. McMillian and Newkirk pleaded guilty. Pugach and Harden stood trial and were convicted. Pugach was sentenced in 1962 for an aggregate of 15 to 30 years in prison. His conviction was affirmed by the Appellate Division, People v. Pugach, 21 A.D.2d 854, 251 N.Y.S.2d 1007 (1st Dept. 1964) and by the Court of Appeals, 16 N.Y.2d 504, 260 N.Y.S. 2d 444, and the Supreme court dismissed his appeal for want of a substantial federal question, 373 U.S. 575, 86 S.Ct. 1077, 16 L.Ed.2d 108 (1966). 411 F.2d 177, 178.

Accordingly, the cases presented to this Court consist of five petitions for a writ of habeas corpus as well as one Civil Rights action brought under Title 42 U.S.C. § 1983. Three of these petitions were originally filed in the Southern District of New York.2 The other three cases were filed in the Western District of New York and following the suggestion of the Court of Appeals mentioned above, were transferred to this Court.2a


On July 30, 1969, at the direction of the Court and pursuant to the admonition of the Court of Appeals that petitioner must promptly assert any other federal claims he wishes to raise along with the ones now pending, United States ex rel. Pugach v. Mancusi, 411 F.2d 177, 181 (2d Cir. 1969), cert. denied 396 U.S. 889, 90 S.Ct. 172, 24 L.Ed.2d 163 (1969) petitioner executed a notice of election of claims listing the following bases for relief:

Petitioner claims (1) that evidence was used against him which was obtained as the tainted fruit of trespassory eavesdropping, carried out under a defective warrant; (2) that statements and acts of his, coerced by police agents through blackmail and fraud, were used against him at trial; (3) that the victim of his alleged assault and others testified against him perjuriously while the prosecutor concealed conflicting statements made previously by these witnesses; (4) that he was denied the right to act as his own counsel after his retained counsel was temporarily relieved; and (5) that his trial counsel was incompetent.

Petitioner sought to supplement his election by a petition sworn to October 6, 1969, in which he included the claim that he was deprived of his Sixth Amendment right to confrontation and effective cross-examination by the admission during his trial of the confession of a co-defendant which incriminated him. The requested addition was accepted by the Court at a pre-hearing conference on November 7, 1969, at which petitioner acknowledged that the six claims represented all the federal grounds for relief which he had with respect of his conviction. In preparation for the determination of the issues herein, the court conducted a painstaking investigation of the steps taken by Mr. Pugach in this and in the Western District of New York, since his conviction. This brought to light the fact that all six claims asserted herein were adjudicated on the merits and habeas petitions thereon were denied, in at least one previous final federal district court determination. No appeals therefrom were taken by Mr. Pugach.

The prior determination of these claims is embodied in the order dated December 11, 1964, of Judge Harold P. Burke of the United States District Court for the Western District of New York, which denied six separate habeas petitions and supplementary applications. The petitions were all of the 1964 vintage, dated April 14 and 24, May 4, June 16 and 22, and July 29, respectively. They were denied without an evidentiary hearing upon Judge Burke's specific finding of fact no. 12 that an examination of the trial record, the record of post-trial proceedings, and the briefs on appeal in the Appellate Division of the New York Supreme Court was sufficient and adequate for a determination of all questions presented. United States ex rel. Pugach v. Wilkins, Civ.No. 11,004 at 9 (W.D.N.Y. Dec. 11, 1964) hereinafter cited as Wilkins.

Relevant to Pugach's claims in his election of July 30, 1969, are the following findings of Judge Burke: Re (1)"no basis for his Pugach's claim that he was denied due process of law by the illegal use of eavesdrop evidence," Wilkins, at 10; re (2)"no basis for his claim that he was denied due process of law by the admission in evidence of acts and declarations of petitioner resulting from acts of extortion and threats of the district attorney and the police," Wilkins, at 10; re (3)"no basis for his claim that he was denied due process by the willful use of perjured testimony," Wilkins at 10; re (4)"no basis for his claim that he was denied due process in what he calls the court's refusal to allow him to defend himself," Wilkins, at 9; and re (5)"The petitioner was represented at the trial by two attorneys who were able and competent." Wilkins, at 9.

Bearing on Pugach's additional claim asserted in his supplementary petition of October 6, 1969, is Judge Burke's finding that there is "no basis for his claim that he was denied due process of law by the instruction to the jury that out-of-court statements made by a co-defendant, not in the presence of petitioner, are evidence against the petitioner," and the finding that there is "no basis for his claim that he was denied due process of law by the admission of evidence unconnected to the petitioner." Wilkins, at 10.

The apparent oversight by the Court of Appeals of these adverse determinations from which no appeal was taken underscores the advisability of the movement under way to install a central registry for all post-conviction applications made by a defendant, which would be indexed under a number assigned to each individual at the time of conviction.3

While traditional notions of res judicata do not literally apply to petitions for habeas corpus, Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Smith v. Yeager, 393 U.S. 122, 124-125, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968), the courts and Congress nevertheless have long recognized that under appropriate circumstances, successive applications for the same relief need not be entertained. See, e. g., Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924), and cases cited in Sanders v. United States, supra; 28 U.S.C. § 2244. Under subsection (a) of § 2244, a District Judge is not required to entertain an application for a writ of habeas corpus if

it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.

The Supreme Court has spelled out the statutory standard for declining to consider successive applications on grounds previously heard and determined:

Controlling weight may be given to denial of a prior application for federal habeas corpus * * * relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077 (1963).

The Supreme Court, furthermore, said that by the "same ground" it meant the same "sufficient legal basis for granting the relief sought by the applicant," even if new factual allegations were used to raise the old ground. Sanders, at 16, 83 S.Ct. at 1077. By an adjudication on the merits, the Supreme Court signified either the prior holding of an evidentiary hearing or the conclusive resolution of factual issues raised in prior applications on the files and records therein. Id. The Supreme Court indicated that the "ends of justice" would normally be served by a...

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