United States v. Denno, 264
Decision Date | 27 February 1964 |
Docket Number | No. 264,Docket 28514.,264 |
Citation | 328 F.2d 309 |
Parties | UNITED STATES ex rel. Charles EMERICK, Petitioner-Appellant, v. Honorable Wilfred DENNO, as Warden of Sing Sing Prison, Ossining, New York, Respondent-Appellee. |
Court | U.S. Court of Appeals — Second Circuit |
Anthony F. Marra of The Legal Aid Society, New York City, for relator-appellant, Leon B. Polsky, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen., of State of New York, New York City, for respondent-appellee, Samuel A. Hirshowitz, First Asst. Atty. Gen., Irving Galt, Asst. Sol. Gen., Ronald J. Offenkrantz, Asst. Atty. Gen., of counsel.
Before SWAN, MOORE and SMITH, Circuit Judges.
This is an appeal from dismissal without evidentiary hearing of relator's application for a writ of habeas corpus. The district judge granted a certificate of probable cause and leave to appeal in forma pauperis. The Legal Aid Society is entitled to our thanks for its able presentation of appellant's case.
Emerick was convicted in a state court, after a jury trial, of grand larceny in the second degree. He was sentenced in 1959 to a term of imprisonment of 5 to 10 years in a state prison. He did not appeal from the judgment of conviction, nor has he applied for a writ of error coram nobis.
Judge Metzner, whose opinion is reported in D.C.N.Y., 220 F.Supp. 890, held that state remedies had been exhausted, because from an examination of recent New York decisions he concluded that coram nobis would not succeed. In U.S. ex rel Martin v. Murphy, 2 Cir., 319 F.2d 897, 898, this court said:
In order to prove that he has no state remedy, we think a state prisoner must seek a writ coram nobis. Accordingly, we affirm dismissal of the writ of habeas corpus...
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Lopez, In re
...States ex rel. Angelet v. Fay (1964) 2 Cir., 333 F.2d 12; United States ex rel. Emerick v. Denno (1963) D.C., 220 F.Supp. 890; affd. 2 Cir., 328 F.2d 309; Gaitan v. United States (1963) 10 Cir., 317 F.2d 494; United States ex rel. McCrea v. LaVallee (1963) D.C., 219 F.Supp. 917; Moore v. St......
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Woodard v. State
...308 F.2d 674; United States ex rel. Martin v. Murphy, 2 Cir., 319 F.2d 897; Mahurin v. Nash, 8 Cir., 321 F.2d 662; United States ex rel. Emerick v. Denno, 2 Cir., 328 F.2d 309; and Whitus v. Balkcom, 5 Cir., 333 F.2d 496. In 1943, for the first time, the Supreme Court of Alabama refers to t......
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United States v. Reincke
...323 F.2d 11 (5th Cir. 1963); United States ex rel. Emerick v. Denno, 220 F.Supp. 890 (S.D.N.Y.1963), aff'd. on other grounds, 328 F.2d 309 (2d Cir. 1964). See generally, Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa.L.Rev. 650 (1962); Note, ......
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United States v. Warden of Rikers Island Penitentiary
...N.E.2d 19 (1963). Thus the Second Circuit has ruled that "a state prisoner must seek a writ coram nobis," United States ex rel. Emerick v. Denno, 328 F.2d 309, 310 (2d Cir. 1964), before seeking relief by federal habeas corpus. 28 U.S.C. § 2254 (1959); see Fay v. Noia, supra, 372 U.S. at 41......