United States v. Fay

• Citation: 230 F. Supp. 942
• Parties: UNITED STATES ex rel. Donald HICKS, Petitioner, v. Edward M. FAY, Warden, Green Haven Prison, Stormville, New York, Respondent.
• Decision Date: 23 June 1964
• Court: U.S. District Court — Southern District of New York

230 F. Supp. 942

UNITED STATES ex rel. Donald HICKS, Petitioner, v. Edward M. FAY, Warden, Green Haven Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

June 23, 1964.

Donald Hicks, pro se.

Louis J. Lefkowitz, Atty. Gen., of New York, for respondent; Brenda S. Soloff, Deputy Asst. Atty. Gen., of counsel.

FEINBERG, District Judge.

Petitioner, Donald Hicks, was convicted of the crimes of robbery in the first degree and grand larceny in the first degree in the County Court of Dutchess County, New York. He was sentenced on December 18, 1948, following a jury trial, to a term of ten to thirty years, plus an additional term of five to ten years for being armed at the time of commission of the crimes. He is presently serving that sentence at Green Haven Prison in Stormville, New York.

In the state courts alone, petitioner has filed in the past thirteen years over sixty-five petitions for collateral relief of one type or another. In his instant application he seeks release under a writ of habeas corpus, raising a number of issues related to, or identical with, those presented in an earlier application to this Court, filed on May 9, 1958.¹ In that application, petitioner raised the following contentions: (1) denial of an opportunity to show legal cause why judgment should not be pronounced against him; (2) knowing use by the district attorney of perjured testimony and the fraudulent concealment of evidence favorable to the defense; (3) denial of the right to produce favorable witnesses; (4) non-corroboration of accomplice testimony; (5) improper trial by the Dutchess County Court when the indictment was filed by a Dutchess County Supreme Court Grand Jury; (6) inadequacy of counsel and failure to allow defense in person; (7) lack of jurisdiction of the Dutchess County Court to try petitioner because of a pending indictment in the federal court.

Petitioner was assigned counsel and a writ of habeas corpus was granted by Judge Cashin on contentions 2, 3 and 6. Contentions 1, 4 and 5 were held to raise no federal questions, and contention 7 was held insubstantial.² Hearings were held on the writ on August 5 and 6, September 18, and November 21, 1958. Apart from petitioner, the witnesses who testified were John J. Lawson, who had assisted the police in the pre-trial investigation of the case; W. Vincent Grady, who was District Attorney of Dutchess County at the time of the trial; Hugh Patrick O'Neil, one of the codefendants; Lloyd L. Rosenthal, Esq., assigned defense counsel at the trial; and John Bruno, Armand Gerentine, and Richard L. Townsend, victims of the robbery. In addition, subpoenas were issued directed to alibi witnesses whose names petitioner had supplied to his counsel at the trial, but attempts to locate them were unsuccessful.

After a review of all the evidence, Judge Cashin concluded that "absolutely no showing of deprivation of constitutional rights has been made," and accordingly dismissed the writ.³ An application for a certificate of probable cause was denied by Judge Cashin on January 29, 1959, and by the Court of Appeals for the Second Circuit on May 5, 1959.

In his instant application, petitioner makes the following contentions: (1) the district attorney knowingly used perjured testimony at the trial; (2) petitioner's assigned trial counsel provided inadequate representation by failing to elicit the fact that Townsend was insane at the time of the trial and intoxicated on the night of the robbery; (3) the district attorney introduced the testimony of Townsend at petitioner's trial, knowing that Townsend was insane and, therefore, incompetent to testify; (4) trial counsel entered into a conspiracy with the district attorney to conceal the fact that Townsend was insane; (5) petitioner was unable to confer privately with trial counsel during the trial because of the proximity of the counsel table to the jury box; (6) petitioner was deprived of his right to appeal from the conviction because of his indigency.

Petitioner has presented all of these contentions in an application to the County Court, Dutchess County, for a writ of error coram nobis (hereinafter referred to as the "1962 coram nobis petition"). The application was denied without a hearing by order dated January 29, 1963. The order of denial was affirmed on November 26, 1963, 19 App. Div.2d 948, 246 N.Y.S.2d 177 (2d Dep't 1963). Leave to appeal to the New York Court of Appeals was denied, and a petition for a writ of certiorari was denied by the United States Supreme Court, 84 S.Ct. 1172 (U.S. April 20, 1964). Therefore, with the possible exception of contention 6, which will be discussed below, it is apparent that state remedies have been exhausted and, unless petitioner is foreclosed by his prior application, he is entitled to consideration by this Court of the merits of those claims that are alleged with sufficient particularity in the instant petition.

28 U.S.C. § 2244 provides:

"No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry."

The Supreme Court has recently elaborated for the guidance of lower federal courts the general principles governing successive applications for both federal habeas corpus and post-conviction relief under 28 U.S.C. § 2255. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 308 (1963). In Sanders, the Supreme Court stated:

"Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application."

Id. 373 U.S. at 15, 83 S.Ct. at 1077.

As to contentions 1 and 2 in the instant application — relating to the alleged knowing use by the district attorney of perjured testimony and the alleged inadequacy of assigned counsel — I conclude after an examination of the transcript of the proceedings before Judge Cashin that petitioner was afforded a full and fair hearing on these issues. Cf. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The specific contention made here that trial counsel failed to inquire into the alleged intoxication of Townsend on the eve of the robbery was developed at the first hearing.⁴ In any event, both this contention and the further claim that trial counsel failed to elicit the alleged insanity of Townsend at the time of the trial (a matter which apparently was not raised, as such, at the hearing) are but different factual allegations to support the same "ground," i. e., inadequacy of counsel. See Sanders v. United States, supra, 373 U.S. at 16, 83 S.Ct. 1068. Absent a showing — upon which petitioner has the burden — that the evidentiary hearing on the prior application was not full and fair or that in some other respect "the ends of justice" would be served by a redetermination of the issue, petitioner cannot obtain another evidentiary hearing by successively raising the identical ground in piecemeal fashion. 28 U.S.C. § 2244; Sanders v. United States, supra 373 U.S. at 16-17, 83 S.Ct. 1068;⁵ see Nash v. Reincke, 325 F.2d 310 (2 Cir. 1963). In accordance with the guidelines set down in Sanders, which "are addressed to the sound discretion of the federal trial judges" (373 U.S. at 18, 83 S.Ct. at 1079), I conclude that petitioner is not entitled to a second hearing on contentions 1 and 2, and that the disposition of those grounds by Judge Cashin is controlling.

No matter how many prior applications for federal habeas corpus relief a prisoner has made, however, he is entitled to consideration of the merits of his claim if the new application alleges sufficient facts to support a different ground of relief and if the application is not "abusive." Sanders v. United States, supra 373 U.S. at 10-11, 17, 83 S.Ct. 1068; Price v. Johnston, 334 U.S. 266, 286-294, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948).

In the proceeding before Judge Cashin, petitioner attempted to raise the issue of Townsend's insanity but his effort was unsuccessful. Townsend's testimony was essential to conviction since the only witnesses who were able to identify petitioner as a participant in the robbery were the two surviving accomplices and Townsend, one of the four victims of the robbery. Had Townsend been held incompetent as a witness, or had the jury disbelieved Townsend's testimony because of his alleged mental condition,⁶ the testimony of the two accomplices, without more, would not have been sufficient to convict under New York law. New York Code Crim.Proc. § 399.

A conviction based upon uncorroborated accomplice testimony, however, violates no federally protected right. See Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L. Ed. 442 (1917); United States v. Agueci, 310 F.2d 817, 833 (2 Cir. 1962). Consequently, the hearing before Judge Cashin did not encompass the issue of Townsend's alleged insanity. But when, as here, it is alleged not only that accomplice testimony was corroborated solely by the testimony of an insane witness, but that the prosecution knew that the witness was insane, the allegation of misconduct on the part of the prosecution may very well raise a federal constitutional objection. See Powell v. Wiman, 287 F.2d 275, 278-279 (5 Cir. 1961), on appeal from remand, 293 F. 2d 605 (1961) (knowing...