United States v. Fay, 391

• Decision Date: 20 September 1957
• Docket Number: No. 391,Docket 24537.,391
• Citation: 248 F.2d 520
• Parties: UNITED STATES of America ex rel. John KOZICKY and John Joseph Klozko, Relators-Appellants, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

248 F.2d 520 (1957)

UNITED STATES of America ex rel. John KOZICKY and John Joseph Klozko, Relators-Appellants, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.

No. 391, Docket 24537.

United States Court of Appeals Second Circuit.

Argued June 5, 1957.

Decided September 20, 1957.

John V. Lindsay, for relators-appellants by appointment.

Louis J. Lefkowitz, Atty. Gen. of State of New York (John R. Davison, Sol. Gen., Albany, N. Y., Michael Freyberg, Asst. Atty. Gen., Lawrence H. Rogovin, Deputy Asst. Atty. Gen., of counsel), for respondent-appellee.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

WATERMAN, Circuit Judge.

This is an appeal from an order of the District Court denying a petition for a writ of habeas corpus sought by the petitioners on the ground that the judgments of conviction under which they were imprisoned had been obtained by the use of coerced confessions and other unconstitutional methods. The district court denied the petition because of the failure of the petitioners to exhaust their state remedies as required by 28 U.S.C.A. § 2254,¹ but authorized them to proceed with an appeal in forma pauperis² and granted them a certificate of probable cause.³

The facts relevant to this appeal are not in dispute. In 1949 the petitioners were convicted by a jury in the County Court of Nassau County, New York, of robbery in the first degree, grand larceny in the first degree, and assault in the second degree. They appealed to the Appellate Division and obtained a reversal of their convictions. 275 App.Div. 863, 89 N.Y.S.2d 286. A second trial again resulted in judgments of conviction and on appeal to the Appellate Division the judgments were affirmed. 278 App.Div. 773, 103 N.Y.S.2d 753, 104 N.Y.S.2d 72.⁴ No further appeals were made by the petitioners, but in January 1956, they filed motions for reargument of their appeals in the Appellate Division. These motions were denied, 1 A.D.2d 826, 149 N.Y.S.2d 231, and leave to appeal from the denial of the motions was denied by the Court of Appeals of New York for want of jurisdiction. Petitioners then applied to the United States Supreme Court for a writ of certiorari, which petition was denied. 352 U.S. 896, 77 S.Ct. 134, 1 L.Ed.2d 288. Thus the merits of the case were never presented either to the Court of Appeals or the United States Supreme Court.

The petitioners allege that subsequent to the affirmance of their convictions by the Appellate Division, their attorney prepared applications for leave to appeal to the Court of Appeals, but that because of their inability to pay the attorney the fees which he had requested, the applications were never filed. They contend, therefore, that their failure to prosecute the appeal was occasioned solely by their poverty and that in view of this we should hold either that they have exhausted the state remedies available to them or that they should be deemed to have done so.

A federal court may not grant a writ of habeas corpus to a state prisoner, save in exceptional circumstances, unless the prisoner has availed himself of one of the corrective processes available in the courts of the state. 28 U.S. C.A. § 2254; Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. This usually entails asserting the merits of the alleged deprivation of federally guaranteed rights at each step in the state courts and an attempt to obtain relief from the United States Supreme Court. Here, the petitioners, by reason of their own inaction for almost seven years, failed to raise these questions in the manner required under New York procedure. Their abortive attempt at reopening the appeal from their convictions was procedurally lacking. Thus, since the petitioners did not appeal to the Court of Appeals from the affirmance of their convictions by the Appellate Division, they have failed to exhaust their state remedies, and their petitions were properly denied. United States ex rel. Johnson v. Ragen, 7 Cir., 1949, 171 F.2d 630, certiorari denied 336 U.S. 927, 69 S.Ct. 649, 93 L.Ed. 1088; United States ex rel. Hanson v. Ragen, 7 Cir., 1948, 166 F.2d 608; Barton v. Smith, 9 Cir., 1947, 162 F.2d 330. Cf. Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982; Ex parte Fonda, 1886, 117 U.S. 516, 6 S. Ct. 848, 29 L.Ed. 994. Counsel for the petitioners, relying on United States ex rel. Embree v. Cummings, 2 Cir., 1956, 233 F.2d 188, seeks to avoid the consequences of the petitioners' failure to exhaust their state remedies by urging that their failure to appeal to the Court of Appeals was a result of their poverty, and that this circumstance rendered the state corrective process ineffective to protect the rights of the petitioners. In Embree we held that even though the petitioner had never presented his claim to the state courts, the U. S. District Court might properly issue a writ of habeas corpus on a showing that the petitioner was unable to pay the statutory filing fee then required in Connecticut in order to enter a petition in the state courts to obtain relief. Cf. Robbins v. Green, 1 Cir., 1954, 218 F.2d 192; Dolan v. Alvis, 6 Cir., 1951, 186 F.2d 586; Rhea v. Edwards, D.C.M.D.Tenn.1955, 136 F.Supp. 671; and our recent decision in United States ex rel. Marcial v. Fay, 2 Cir., 1957, 247 F.2d 662.

Embree and the cases just cited are readily distinguishable from the case at bar. The failure of the petitioner in each of those cases to obtain an adjudication of his claim by the highest court of the state was attributable to the failure of the state to provide any remedy which might have been availed of by a penniless petitioner. The financial requirements imposed by the state as a condition of obtaining redress for the alleged grievances were an effective bar to any attempt by the petitioners to obtain relief from the state courts. The petitioners had either to seek relief in the federal courts or to remain remediless; the doors of the state courts were not open to them.

The petitioners in the present case confronted no such obstacles. There were no financial barriers which prevented them from perfecting an appeal to the Court of Appeals. Permission might have been obtained to have the appeal heard on the original record and typewritten briefs, see e. g., People v. Godwin, 1956, 2 N.Y.2d 784, 158 N.Y.S. 2d 328, 139 N.E.2d 426. And on a proper showing the petitioners might have received the benefit of court-appointed counsel. Cf. Application of Sullivan, 1948, 297 N.Y. 190, 78 N.E.2d 467.

Counsel for the petitioners also urges that since the petitioners were without the benefit of counsel during the period within which they were required to file an appeal, their failure to avail themselves of the corrective process open to them in the state courts, including the right to prosecute an appeal without counsel in forma...