United States v. Fay
| Decision Date | 08 February 1962 |
| Parties | UNITED STATES ex rel. John Oliver HUNTER, Relator, v. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, and the People of the State of New York, Respondents. |
| Court | U.S. District Court — Southern District of New York |
John Oliver Hunter, pro se.
Louis J. Lefkowitz, Atty. Gen., by Norman Friedman, Asst. Atty. Gen., for respondents.
This is a petition for a writ of habeas corpus. Relator is presently confined at Green Haven Prison, Stormville, New York. On April 3, 1958, relator was convicted in the County Court of Suffolk County of manslaughter in the first degree. He was sentenced on April 23, 1958, as a second felony offender, to an indeterminate term of 25 to 40 years in prison. The conviction was unanimously affirmed by the Appellate Division. 10 A.D.2d 1007, 204 N.Y.S.2d 950 (2d Dept. 1960). Leave to appeal to the New York Court of Appeals was denied on September 12, 1960, and certiorari was denied by the United States Supreme Court, 365 U.S. 849, 81 S.Ct. 812, 5 L.Ed.2d 813 (March 20, 1961). Relator then made application for the instant writ.
The application is voluminous, repetitious and unclear. But in order to make the protection of the writ "effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief." Darr v. Burford, 339 U.S. 200, 203-204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). Relator will not be held to the usual standards of pleading or to niceties of correct legal representation. The court's desire to treat the petition with indulgence does not, however, excuse relator from complying with the requirements of 28 U.S.C. § 2254.1
Relator alleges generally that throughout the proceedings in the state courts he has been deprived of due process of law and has not been accorded a fair trial. Specifically, as best as the court can determine from a study of the lengthy petition, relator alleges the following: (1) that his conviction was obtained as a result of evidence which was the product of an unconstitutional search and seizure; (2) that his constitutional right to appear before the grand jury was denied him; (3) that the prosecution's opening statement as to proof of similar crimes violated his right to a fair, unbiased, impartial and openminded trial; (4) that his counsel misrepresented himself as a criminal lawyer, that he was incompetent, that he misinformed relator on the law and failed to advise him of certain rights, and that he deliberately sacrificed relator's freedom in order to gain court favors in the future; (5) that the minutes of his trial have been altered and tampered with, thus denying him a fair review and that copies of the minutes have been denied him, thus preventing him from perfecting his petition; (6) that the court was politically motivated and was prejudiced against him due to his American Indian ancestry and due to his prior successful appeal of his first conviction, and that he was made the scapegoat for political corruption in the District Attorney's office; (7) that his sentence is oppressive and unduly severe in view of all the circumstances; (8) that he was denied due process in that the court admitted certain evidence and testimony and excluded other relevant testimony; (9) that the prosecution knowingly used perjured testimony and altered certain photographic evidence; (10) that the extensive comments of the court deprived him of due process in that it deprived the jury of their independent judgment; (11) that his first conviction, upon which a second offender sentence was based, is "faulty"; (12) that the court failed to charge on intoxication even though no request was made; and (13) that the court failed to advise him of his right to have the jury polled.
The Attorney General of the State of New York has submitted an affidavit in opposition wherein he raises the issue that relator has failed to exhaust his state remedies. The exhaustion doctrine grew out of principles of comity and was finally codified in 28 U.S.C. § 2254. See Darr v. Burford, supra, for the history and development of the doctrine. It does not appear from the application before the court that relator has exhausted his state remedies. Thus, I do not reach the merits of relator's contentions, nor do I express any opinion as to which of the grounds presented raises a federal question and which of the grounds does not.
The exhaustion doctrine encompasses more than merely following the state appellate procedure to its culmination in the denial of certiorari by the United States Supreme Court. Exhaustion includes not only the use of available procedural steps, but also raising of the point upon which the jurisdiction of the District Court may be predicated. United States ex rel. Pollock v. Denno, 183 F.Supp. 514 (S.D.N.Y.1960). In order for relator to have exhausted his state remedies, the merits of his constitutional claim must have been presented to the state courts for adjudication. See, e. g., United States ex rel. Cuomo v. Fay, 257 F.2d 438 (2d Cir., 1958); cert. denied, 358 U.S. 935, 79 S.Ct. 325, 3 L.Ed.2d 307 (1959); United States ex rel. Sproch v. Ragen, 246 F.2d 264, 266 (7th Cir., 1957); United States ex rel. Gregory v. People of New York, 195 F.Supp. 527 (N.D.N.Y.1961); United States ex rel. Noia v. Fay, 183 F.Supp. 222, 226 (S.D. N.Y.1960); United States ex rel. Murdaugh v. Murphy, 183 F.Supp. 440 (N.D. N.Y.1960); United States ex rel. Morrison v. Myers, 174 F.Supp. 818, 819-820 (E.D.Pa.1959). "It has long been settled that the federal courts will not consider on habeas corpus claims which have not been raised in the state tribunal * *." Darr v. Burford, supra, 339 U.S. at 203, 70 S.Ct. at 589.
Examination of relator's...
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