United States v. Jackson

• Decision Date: 20 November 1944
• Docket Number: No. 94.,94.
• Citation: 146 F.2d 251
• Parties: UNITED STATES ex rel. ROGALSKI v. JACKSON.
• Court: U.S. Court of Appeals — Second Circuit

146 F.2d 251 (1944)

UNITED STATES ex rel. ROGALSKI v. JACKSON.

No. 94.

Circuit Court of Appeals, Second Circuit.

November 20, 1944.

Clyde Dart, of New York City, for appellant Stephen Rogalski.

Nathaniel L. Goldstein, Atty. Gen., of New York (Orrin G. Judd, Sol. Gen., of New York City, Wendell P. Brown, First Asst. Atty. Gen., and Edward L. Ryan, Asst. Atty. Gen., of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

On October 21, 1938, the appellant Rogalski and two others were each convicted in the County Court of Kings County, New York, under an indictment charging them with possession of dangerous weapons in violation of Section 1897 (4) of the Penal Law of the State of New York, Consol. Laws N.Y. c. 40. They were passengers in an automobile driven by one Klein in which were found two loaded revolvers. Section 1898-a of the Penal Law provides that the presence in an automobile of any pistol "shall be presumptive evidence of its illegal possession by all the persons found in such automobile at the time such weapon * * * is found."

The conviction of Rogalski was affirmed by the New York Appellate Division in March 1939 (People v. Rogalski, 256 App. Div. 995, 11 N.Y.S.2d 365) and in the Court of Appeals on June 19, 1939 (281 N.Y. 581, 22 N.E.2d 160). From an examination of the record and briefs on these appeals it appears that the constitutionality of Section 1898-a of the Penal Code was raised by Rogalski. No appeal to the Supreme Court of the United States was taken from the judgment of affirmance by the New York Court of Appeals, nor was any petition made to the Supreme Court for a writ of certiorari to review that judgment.

Thereafter Rogalski applied to the Supreme Court of the United States for leave to file a petition for a writ of habeas corpus. His application was denied January 5, 1942 (Ex parte Rogalski, 314 U.S. 587, 62 S.Ct. 476, 86 L.Ed. 474), whereupon he applied to the New York Supreme Court (Clinton County) for a writ of habeas corpus which, on June 12, 1942, ordered the writ dismissed. This order was affirmed by the Appellate Division in November, 1942 (People ex rel. Rogalski v. Martin, 265 App.Div. 903, 38 N.Y.S.2d 8), and was affirmed by the Court of Appeals on April 22, 1943 (290 N.Y. 751, 50 N.E.2d 98). He then applied to the Supreme Court of the United States for a writ of certiorari to review this last order. On October 11, 1943, his petition was denied by that court (320 U.S. 767, 64 S.Ct. 53), because it did not appear from the record that the State Court of Appeals had necessarily passed upon the constitutionality of Section 1898-a. He then moved before the Court of Appeals to amend the remittitur but his motion was denied on the ground that the only question of constitutional law considered by that court upon affirmance of the order dismissing the writ of habeas corpus was whether the refusal to permit him to challenge the validity of his conviction by habeas corpus was not a denial of due process. After this decision by the Court of Appeals the Supreme Court of the United States, on December 6, 1943, denied a rehearing of the petition for a writ of certiorari.

After these numerous unsuccessful attempts to have his conviction set aside, Rogalski began the present proceeding to obtain a writ of habeas corpus from the United States District Court for the Northern District of New York. His petition alleged that his conviction was predicated solely on his presence in the automobile in which the two revolvers were found and the presumption contained in Section 1898-a, supra, that he was thereby guilty of illegal possession thereof. He contended that Section 1898-a was an unconstitutional provision in that it compelled him to rebut the presumption of innocence afforded to every accused person and that his conviction was therefore unlawful. Judge Brennan denied the application for the writ on the ground that the relator had not exhausted his right to appeal to the Supreme Court of the United States from the judgment of conviction. D.C., 58 F.Supp. 218. The per curiam opinion of the Supreme Court in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 450, was cited in which it was stated that: "Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted."

From Judge Brennan's order denying the writ Rogalski has appealed. We think the order was right and should be affirmed.

In United States ex rel. Murphy v. Murphy, Warden, 108 F.2d 861, 862, we dealt with a problem like the one here. There a defendant had been convicted under a similar statute and had neglected to exhaust his remedy of applying to Justices of the Supreme Court to allow an appeal from the affirmance of his sentence of conviction in the Appellate Division and the Court of Appeals. We held that his refusal to avail himself of this right "forfeited any...