United States v. Fay

Decision Date07 February 1962
Docket NumberDocket 26557.,No. 308,308
PartiesUNITED STATES of America ex rel. Charles NOIA, Relator-Appellant, v. Edwin M. FAY, as Warden of Greenhaven Prison, State of New York, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit


Edward S. Silver, Dist. Atty., Kings County, Brooklyn, N. Y. (William I. Siegel, Asst. Dist. Atty., Brooklyn, N. Y., of counsel), for appellee.

Edward Q. Carr, Jr., New York City, Legal Aid Society (Leon B. Polsky, appellate counsel), New York City, for appellant.

Before WATERMAN, MOORE and SMITH, Circuit Judges.

Certiorari Granted May 14, 1962. See 82 S.Ct. 1140.

WATERMAN, Circuit Judge.

Relator, Charles Noia, and two others, Frank Bonino and Santo Caminito, were convicted twenty years ago under the laws of the State of New York for the crime of murder in the first degree upon an indictment alleging a felony murder in that they committed a homicide while engaged in an armed robbery. At trial the State offered nothing to connect any of the three with the crime except their several confessions, admitted into evidence over objections by defense counsel on the ground that the confessions were involuntarily made. Each defendant testified in his own defense and introduced evidence that each of the three confessions was obtained by police coercion in violation of the Fourteenth Amendment. The issue of the voluntariness of these confessions was submitted to the jury, the judge charging that if the confessions were found to be involuntary ones the defendants should be acquitted. The jury returned verdicts of guilty but, as it may do in New York in felony murder cases, recommended clemency. The judge accepted the jury recommendations and sentenced each of the three defendants to life imprisonment. Necessarily implied in the verdicts was a jury finding that the three confessions were not involuntary.

Bonino and Caminito appealed their convictions to the New York Supreme Court, Appellate Division, Second Department, and, on affirmance by that court, People v. Bonino, 265 App.Div. 960, 38 N.Y.S.2d 1019 (1942), appealed to the New York Court of Appeals, 291 N.Y. 541, 50 N.E.2d 654 (1943). Noia did not appeal. Both of the appellate tribunals considered whether the two appealing defendants had been denied due process of law by the use of their allegedly coerced confessions. The courts rejected the appellants' contentions, and affirmed the convictions. Neither Caminito nor Bonino petitioned the United States Supreme Court for certiorari at that time. Later, on two different occasions, Caminito moved the New York Court of Appeals for reargument of his appeal. These motions were denied, People v. Caminito, 297 N.Y. 882, 79 N.E.2d 277 (1948); 307 N.Y. 686, 120 N.E.2d 857 (1954).1 After the second denial Caminito filed a petition in the U. S. Supreme Court for certiorari, which was denied, 348 U.S. 839, 75 S.Ct. 46, 99 L.Ed. 662 (1954).

Caminito forthwith petitioned the United States District Court for the Northern District of New York for the issuance of a federal writ of habeas corpus. He once more claimed that he had been denied due process of law at his New York State trial by the admission against him of his coerced confession. His petition was denied, United States ex rel. Caminito v. Murphy, 127 F.Supp. 689 (1955), but on appeal to our court the district court was reversed, 2 Cir., 222 F. 2d 698 (1955). We held, as a matter of law, that Caminito's confessions had been coerced in violation of his right to due process of law under the Fourteenth Amendment and that consequently his conviction was void. A petition for certiorari to the U. S. Supreme Court was denied, 350 U.S. 896, 76 S.Ct. 155, 100 L. Ed. 788 (1955).

Thereupon Bonino, the other defendant who had appealed his conviction, petitioned the New York Court of Appeals for reargument of his appeal. That court granted his application, reversed the conviction, and ordered that upon retrial his coerced confession not be introduced against him. People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51 (1956). In fact, neither Caminito nor Bonino has ever been retried, as indeed it would appear to be impossible to obtain their convictions without the use of these confessions; and, though they continue to be subject to indictment, they are free from restraint.

As previously stated, Noia, the relator here, did not appeal from his conviction. Hence the post-conviction procedure of applying for a belated reargument in the New York Court of Appeals, utilized first by Caminito and then by Bonino, was unavailable to him. Nevertheless, Noia was convicted at the same trial as were the other two, and convicted by the same means; therefore, if their convictions were void it seemed reasonable to incarcerated Noia that his conviction was also void. He thereupon moved to set aside his conviction and sentence by a proceeding in Kings County Court, the court wherein he was originally tried, convicted and sentenced. Noia could maintain no ground for setting aside his conviction other than the contention that his coerced confessions were inadmissible, a ground urged upon the trial court at the time of trial. He argued that since this ground had sufficed to void the convictions of his companion defendants, Caminito and Bonino, the sentencing court must have inherent power to set aside his conviction also, a conviction obtained through the same denial of due process.

The Kings County Court found that Noia's conviction was manifestly unlawful and ordered it vacated. People v. Noia, 3 Misc.2d 447, 158 N.Y.S.2d 683 (County Ct.1956). The State appealed to the Appellate Division, Second Department, where the decision of the County Court was reversed, 4 A.D.2d 698, 163 N. Y.S.2d 796 (1957). In a memorandum opinion the Appellate Division unanimously held:

"It was error to vacate the judgment. The respondent\'s contentions with respect to the illegality of his conviction involve matters which could have been adequately reviewed on appeal from the judgment of conviction. No appeal was taken. This being so, the court was without authority to grant the application (People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188; People v. Russo, 284 App.Div. 763, 135 N.Y.S.2d 475; People v. Palumbo, 282 App.Div. 1059, 126 N.Y.S.2d 381)." 163 N.Y. S.2d 796, 797.

Noia, in turn, appealed to the New York Court of Appeals, which unanimously affirmed the Appellate Division. People v. Noia, reported sub nom., People v. Caminito, 3 N.Y.2d 596, 170 N.Y.S.2d 799, 148 N.E.2d 139, cert. denied, Noia v. People of State of New York, 357 U.S. 905, 78 S. Ct. 1149, 2 L.Ed.2d 1156 (1958). Relying upon People v. Rizzo, 246 N.Y. 334, 339, 158 N.E. 888, 890, 55 A.L.R. 711 (1927), the Court of Appeals held that Noia's failure timely to appeal from his conviction precluded him from obtaining the post-conviction relief he sought. The court went on to discuss the revitalization in New York of the extraordinary writ of coram nobis, see Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 426, 146 A.L.R. 1422 (1943), and pointed out that, even though the scope of that common law writ had been somewhat expanded beyond its original office by the New York courts, it was still only usable in New York for the purpose for which it was initially designed, that of presenting facts to the court of which the court was not aware at the time of the judgment sought to be vacated. 3 N.Y. at 601, 170 N.Y.S.2d at 804, 148 N.E.2d at 142. Therefore, since the ground upon which Noia sought to have his conviction set aside was apparent on the record at the time when he could have appealed, no post-conviction remedy was available to him. This was held to be so, even though the convictions of Caminito and Bonino had been vacated, the former by action of a federal court after Caminito had fully prosecuted his appeal through the New York State Courts, and the latter by a reversal upon reargument in the New York Court of Appeals itself. 3 N.Y. at 600, 170 N.Y.S.2d at 803, 148 N.E.2d at 142.2

After this adverse decision by the highest court of New York and the subsequent denial of his petition for a writ of certiorari in the U. S. Supreme Court, Noia petitioned the U. S. District Court for the Southern District of New York for a writ of habeas corpus in order to present to a federal court his claim that he was convicted without due process of law. Before a federal district judge could consider the merits of relator's application, Noia had to satisfy the threshold requirement set forth in 28 U.S.C. § 2254 (1958), which provides that:

"§ 2254. State custody; remedies in State Courts
"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

The purport of the statute was exhaustively considered by the district judge who, in a written opinion, reported at 183 F.Supp. 222, concluded that a study of the authorities required that the statute be interpreted so as to foreclose any petitioner who had exhausted all presently available state remedies from obtaining habeas corpus relief if he had failed to pursue a previously available state remedy during the time when that remedy had been available to him. Inasmuch as Noia had not timely appealed his conviction when he could have done so, and inasmuch as the New...

To continue reading

Request your trial
23 cases
  • United States v. Drummond
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Diciembre 1965
    ...the absence of counsel if he had known on the evening of September 29 what Escobedo subsequently made apparent. United States ex rel. Noia v. Fay, 300 F.2d 345, 351 (2 Cir. 1962), aff'd on other grounds, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963). See Carnley v. Cochran, 369 U.S. 506......
  • Brubaker v. Dickson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 20 Diciembre 1962
    ...F.2d 895 (4th Cir. 1961). 54 See, e. g., United States ex rel. Seals v. Wiman, 304 F.2d 53, 67-69 (5th Cir. 1962); United States ex rel. Noia v. Fay, 300 F.2d 345 (2d Cir.), cert. granted 369 U.S. 869, 82 S.Ct. 1140, 8 L.Ed.2d 274 (1962), 62 Colum.L.Rev. 1077 (1962); United States ex rel. G......
  • United States ex rel. Bruno v. Herold
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 14 Febrero 1969
    ...This Court made the same observation in quoting this passage approvingly when Noia's case was before us. United States ex rel. Noia v. Fay, 300 F.2d 345, 350-351 (2 Cir. 1962). See also, Reitz, "Federal Habeas Corpus: Impact of an Abortive State Proceeding," 74 Harv.L.Rev. 1315, 1333-35 (19......
  • Thomas v. Cunningham
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 8 Enero 1963
    ...v. Sacks, 369 U.S. 656, 82 S.Ct. 992, 8 L.Ed.2d 178 (1962); Player v. Steiner, 292 F.2d 1 (4th Cir., 1961); United States ex rel. Noia v. Fay, 300 F.2d 345 (2d Cir., 1962); cf., Clark v. Warden, 199 F.Supp. 29 2 In 4 Blackstone's Commentaries 24, it is said: "Also if a man in his sound memo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT