United States v. Herold

• Decision Date: 11 September 1964
• Docket Number: Civ. No. 10155.
• Citation: 233 F. Supp. 546
• Parties: UNITED STATES of America ex rel. Anthony BRUNO, Petitioner, v. Ross E. HEROLD, M.D., Director of Dannemora State Hospital, Dannemora, New York, Respondent.
• Court: U.S. District Court — Northern District of New York

233 F. Supp. 546

UNITED STATES of America ex rel. Anthony BRUNO, Petitioner, v. Ross E. HEROLD, M.D., Director of Dannemora State Hospital, Dannemora, New York, Respondent.

Civ. No. 10155.

United States District Court N. D. New York.

September 11, 1964.

Anthony Bruno, pro se.

Edward S. Silver, Dist. Atty., Kings County, Brooklyn, N. Y., William I. Siegel, Asst. Dist. Atty., of counsel, for United States.

Louis J. Lefkowitz, Atty. Gen. State of New York, Albany, N. Y., Joseph R. Castellani, Asst. Atty. Gen., of counsel, for respondent.

JAMES T. FOLEY, Chief Judge.

This habeas corpus proceeding presents one of the serious problems that quite often are spawned in Kings County Court in the City of Brooklyn during a state criminal trial held many years ago. Such problems wend their course through the State appellate courts, at times, as happened with this one through a double round of state review, to reach this District Court in upstate New York with full intensity. This statement is not meant to infer that habeas corpus in this District Court is a seasonal burden. It has been my experience for many months that some phase of the numerous habeas corpus proceedings filed in this District by State prisoners—mostly convicted in the New York City and Brooklyn areas—is a daily task, Winter, Summer, Spring and Fall, week in and week out of a seven-day week. There is little planning that can be done to lay aside this type problem so as not to interfere with other work of the Court. State prisoners are demanding litigants, and rightly so because they are confined in jail, and the federal habeas corpus statute dictates by its plain wording quick processing and hearing and summary disposition by the District Judge at his level. Under such statutory compulsion, with brief time limitations for processing, the problems of other litigants must await the analysis and solution of habeas corpus applications that must be accorded preferential treatment by the terms of the federal statute.

The petitioner has been an inmate of Dannemora State Hospital since 1952. This institution is for the treatment of prisoners who become mentally disturbed during their imprisonment. In the present application the petitioner has presented his cause directly and in reply clearly and intelligently. I have already written one decision dated May 7, 1964, in which I denied a previous application by this petitioner without prejudice. Most of the details concerning the conviction of petitioner after trial in September 1947 in Kings County and the appellate review by direct appeal, and after coram nobis application denied without hearing by Judge Leibowitz on October 9, 1963, are contained therein. It can now be added that the citation of the coram nobis appeal is 20 A.D.2d 852, 249 N.Y.S.2d 406, which is a one-line note affirming the denial of Judge Leibowitz. The present petition states that after my dismissal in May 1964, Judge Burke of the New York Court of Appeals denied leave to appeal to that Court on June 1, 1964.

Upon the filing of the present petition, I issued an order to show cause, and Assistant District Attorney Siegel of the District Attorney's Office of Kings County, involved in many of the noted federal habeas corpus rulings of recent years, filed an affidavit in opposition. The position of the State is still a formal one as in the State Courts, and there is still no enlightenment or reason given for the unusual occurrence that after two witnesses were sworn the Trial Judge stated: "I think I will clear the courtroom. Have everybody step out except the people in the jury box." The State does not dispute that this occurred and the petitioner, on page 4 of his traverse, elaborates with the statement that his mother, friends, witnesses, the public and reporters were "herded" out of the courtroom for the duration of the trial and only two plainsclothesmen allowed to remain.

This ruling of exclusion by the Trial Judge was not objected to by trial counsel when made, nor was the point raised and presented upon direct appeal. It was not until the coram nobis application was made to Judge Leibowitz in 1963 that the claim was made deprivation of a public trial violated fundamental and substantial rights. In this collateral proceeding, although nothing has been written by the Courts of New York, it seems that the prosecution viewpoint prevailed, namely, that inasmuch as the simple oral statement of exclusion appears on the record of the trial then, under settled law of New York, the point had to be raised on direct appeal, and coram nobis would not lie.

The opposition affidavit here earnestly seeks, in effect, the adoption of the State reasoning in this federal habeas corpus field which has expanded markedly in its supervision of and intrusion into state criminal convictions. It is contended that Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is sui generis and was decided by the majority on the basis of its specific and peculiar facts. I am not sure at all of this characterization and interpretation because, as the dissents point up, the majority ruling in several aspects is an abrupt break with the past, and Justice Harlan described the majority ruling as one with future consequences, as disquieting as any decision rendered in a long time. (Pg. 448, 83 S.Ct. pg. 853). Failure to comply with state procedural sanctions, a necessary discipline to insure the orderly procedure of law in every court system, is in my judgment practically extinguished as a reason for refusal to entertain federal habeas corpus by the detailed and significant majority holding in Noia. (Pg. 398, 83 S.Ct. pg. 826, see also Harlan dissent pg. 436, 83 S.Ct. pg. 847.) The Assistant District Attorney poses as the crux of the question here: "May every defendant in a State Court refrain from presenting a question of law or fact, or both, to the appellate courts of his own State, and then, for the first time, raise it in a Federal Court in a habeas corpus proceeding? More specifically: May such defendants follow this course of procedure when there has been no objection taken at the trial level?" It is immediately and confidently asserted in the affidavit that New York submits the answer is clearly in the negative, stating that Fay v. Noia, supra, explicitly so holds. There is no reference made to any explicit portion of the Noia majority opinion written by Justice Brennan for such version.

Although I do not intend to write an essay on the subject, I cannot agree that the Noia opinion and ruling is one of narrow range that would cover only habeas corpus applications based upon facts that fit or at least resemble the Noia mold. Noia is, on its face, an extensive ruling of great range with ramification still to be measured and weighed by the federal and state court systems in their combination review of alleged federal questions arising in state criminal...