United States ex rel. Epton v. Nenna, 459

• Decision Date: 30 June 1971
• Docket Number: Docket 35559.,No. 459,459
• Citation: 446 F.2d 363
• Parties: UNITED STATES of America ex rel. William EPTON, Petitioner-Appellant, v. Albert NENNA, Warden, Manhattan House of Detention for Men, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

446 F.2d 363 (1971)

UNITED STATES of America ex rel. William EPTON, Petitioner-Appellant, v. Albert NENNA, Warden, Manhattan House of Detention for Men, Respondent-Appellee.

No. 459, Docket 35559.

United States Court of Appeals, Second Circuit.

Argued December 11, 1970.

Decided June 30, 1971.

Eleanor Jackson Piel, New York City (Melvin L. Wulf, American Civil Liberties

Union, Paul Chevigny, New York Civil Liberties Union, New York City, on the brief), for petitioner-appellant.

David Otis Fuller, Jr., Asst. Dist. Atty. (Frank S. Hogan, Dist. Atty., New York County, Michael R. Juviler, Asst. Dist. Atty., on the brief), for respondent-appellee.

Before LUMBARD and FEINBERG, Circuit Judges, and CLARIE, District Judge.^*

FEINBERG, Circuit Judge:

William Epton appeals from an order of the United States District Court for the Southern District of New York, Marvin E. Frankel, J., denying his petition for a writ of habeas corpus. After a jury trial in the New York State courts, petitioner was convicted in 1966 of criminal anarchy, former N.Y.Pen. Law §§ 160, 161,¹ conspiracy to advocate criminal anarchy, former N.Y.Pen.Law §§ 160, 161, 580, and conspiracy to commit riot, former N.Y.Pen.Law §§ 580, 2090. He was sentenced to three concurrent one-year terms in the city penitentiary. Judge Frankel's opinion, 318 F.Supp. 899, carefully considered petitioner's major arguments and adequately set forth the reasons why habeas relief was denied. Our consideration of the merits of petitioner's most substantial claims is foreclosed both by a recent decision of this court and by the Supreme Court ruling in Epton's prior direct appeal to it. As to the other issues raised before us, we affirm the district court essentially for the reasons stated in its opinion.

Without repeating Judge Frankel's efforts, some background would be helpful. Epton's convictions were based upon his activities about the time of the 1964 Harlem riot. That riot began two days after a 15-year old Negro boy was shot and killed by an off-duty white New York policeman. For some months previously, Epton, as leader of the Harlem branch of the Progressive Labor Movement (P.L.M.),² had been making an issue of what he characterized as the policy of brutality by the police against the black residents of Harlem. However, there was no evidence that Epton had any hand in the riots that broke out on the night of July 18, and the trial court dismissed that count of the fourcount indictment that had charged Epton with riot in violation of former N. Y.Pen.Law § 2090. Even so, Epton was by no means inactive in Harlem during this period. In speeches given on street corners and in the Harlem office of the P.L.M., in conversations with other members of P.L.M. and the public, and in leaflets and posters, Epton spoke out about the need of Harlem residents to organize for self-defense against the police. Without extensive quotation, it is enough to say that the tenor of Epton's remarks was violent at times and they could fairly be characterized as the now familiar militant-revolutionary rhetoric of black power advocates. At the same time, Epton was organizing a mass demonstration for Saturday, July 25, with the 32nd Police Precinct to be the objective of a march. Although petitioner's application for a demonstration permit was turned down, he went ahead with his plans. On July 25, after the rioting had subsided, Epton and a small group attempted to begin their planned march. Instead, Epton was arrested.

Petitioner's conviction was affirmed in the New York State courts. New York v. Epton, 19 N.Y.2d 496, 281 N.Y. S.2d 9, 227 N.E.2d 829 (1967), aff'g, 27 A.D.2d 645, 276 N.Y.S.2d 847 (1966). In the Supreme Court, Epton's petition for a writ of certiorari was denied, and his appeal was dismissed for want of a substantial federal question. 390 U.S. 29, 88 S.Ct. 824, 19 L.Ed.2d 808, rehearing denied, 390 U.S. 976, 88 S.Ct. 1057, 1061, 19 L.Ed.2d 1198 (1968), petition for leave to file petition for rehearing out of time denied, 398 U.S. 944, 90 S. Ct. 1832, 1833, 26 L.Ed.2d 282 (1970).³

I.

As already indicated, several of the issues before us do not require extended discussion by this court. The first of these is the argument that Epton was indicted in violation of his constitutional rights because the members of the New York grand jury were selected under a system that discriminated as to race, wealth and age. The district court, and the parties in their briefs in this court, apparently considered this to be the most significant question in the case. However, our consideration of the issue is sharply limited by intervening precedent. Since the decision of the district court in favor of the State on the issue and since the argument of this appeal, this court has ruled, in United States ex rel. Chestnut v. Criminal Court, 442 F.2d 611 (1971), that the grand jury that indicted Epton was not unconstitutionally selected. Epton raises "the same arguments"⁴ that were rejected by this court in Chestnut. We therefore, affirm on this issue.

The other issues that require only brief discussion are those that raise the constitutionality of the New York anarchy law under which Epton was convicted.⁵ As we understand appellant's brief, his arguments include the following: (1) the New York Court of Appeals could not constitutionally redefine and narrow the anarchy law in Epton's appeal, 19 N.Y.2d 496, 281 N.Y.S. 2d 9, 227 N.E.2d 829 (1967), after it had definitively interpreted the statute over 40 years earlier in New York v. Gitlow, 234 N.Y. 132, 136 N.E. 317 (1922), aff'd, 268 U.S. 652, 45 S.Ct. 625, 69 L. Ed. 1138 (1925); (2) even if the New York court could reinterpret the statute, the new interpretation remains unconstitutional because it declares illegal speech that is protected by the first amendment, citing, e. g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed. 2d 629 (1967); and, (3) even if the new interpretation of the anarchy statute is constitutional, applying it to Epton violates the due process requirement of adequate notice because Epton could reasonably have expected, in light of modern constitutional law, that a state anarchy statute which had not been invoked since the Gitlow prosecution in 1921 was moribund, citing, e. g., Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

These questions are very substantial,⁶ but we do not believe that we are free to rule on them in this case. The district court reasoned that the Supreme Court had either decided them or had held that they should not be reached and that this was binding on a lower court under the doctrine of law of the case. Briggs v. Pennsylvania R.R., 334 U.S. 304, 68 S. Ct. 1039, 92 L.Ed. 1403 (1948); Ex Parte Sibbald v. United States, 12 Pet. 488, 37 U.S. 488, 9 L.Ed. 1167 (1838); see Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177-178 (2d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151 (1968). We agree. As noted above, the Supreme Court dismissed Epton's appeal from the New York decision for want of a substantial federal question, 390 U.S. 29, 88 S.Ct. 824, 19 L.Ed.2d 808 (1968), and this is a decision on the merits⁷ of those issues raised on appeal.⁸ While it is not altogether clear, the Court's dismissal was based either on an affirmance of the ruling of the New York Court of Appeals on the substantive issues, or, as indicated in the concurrence of Justice Stewart, id., and the dissent of Justice Douglas, id. at 30, 88 S.Ct. 824,⁹ on the concurrent sentence doctrine, citing Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).

Petitioner argues that because of recent changes in the concurrent sentence doctrine we should examine the constitutionality of the anarchy law. Citing Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969), he claims that the doctrine no longer states a jurisdictional rule. That may be so, but we are not persuaded to reverse the district court. First, Benton does not answer the first branch of the law of the case problem here, i. e., that the Supreme Court considered and summarily affirmed the rulings of the New York Court of Appeals. Second, Benton indicates that the concurrent sentence doctrine may still exist as a discretionary rule of convenience, 395 U.S. at 791, 89 S.Ct. 2056, and we have so assumed. See United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970); United States ex rel. Weems v. Follette, 414 F.2d 417 (2d Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L. Ed.2d 131 (1970). But, as correctly noted by Judge Frankel, such discretion in this case is properly not ours to exercise but rather the Supreme Court's.¹⁰ Accordingly, except for the issues considered in Part II, infra, we do not pass upon the merits of appellant's constitutional arguments. In light of the substantiality of some of those contentions, we are comforted in the thought that if our deference to the prior Supreme Court ruling in this case is undue, that tribunal — to which appellants may obviously apply — is the proper forum to so decide.

II.

Of course, we are not similarly foreclosed from considering the questions which could properly have been raised only by petition for a writ of certiorari. Brown v. Allen, 344 U.S. 443, 497, 73 S. Ct. 397, 97 L.Ed. 469 (1953) (separate concurrence by Mr. Justice Frankfurter). And to those issues we now turn.

Epton's first and most substantial argument is that his conviction for conspiracy to riot violated his rights under the first amendment because the overt acts alleged in the indictment were all constitutionally protected speech and, even if some were...