United States v. Thomas
Decision Date | 19 August 1966 |
Docket Number | No. 65 Civil 3648.,65 Civil 3648. |
Citation | 257 F. Supp. 928 |
Parties | UNITED STATES of America ex rel. Edward F. MAHONEY, Petitioner, v. Hon. Warden THOMAS, Rikers Island Penitentiary, Respondent. |
Court | U.S. District Court — Southern District of New York |
Anthony F. Marra, New York City, for petitioner; Joshua N. Koplovitz, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City, for respondent; Brenda S. Soloff, Deputy Asst. Atty. Gen., of counsel.
Edward F. Mahoney, currently serving a sentence of from ten to twelve years following his conviction in the Supreme Court of Kings County, New York, of robbery in the first degree, seeks his release on a federal writ of habeas corpus, contending that his federal rights under the Fourth and Fourteenth Amendments were violated when allegedly illegally seized evidence was used against him at his trial.
The judgment convicting petitioner was entered on March 27, 1961, when evidence, even though obtained through an unreasonable search and seizure, was admissible in criminal prosecutions in the New York courts.1 However, on June 19, 1961—seven days before petitioner's conviction was affirmed by the Appellate Division2 and some seven months before it was affirmed by the New York Court of Appeals3—the Supreme Court ruled in Mapp v. Ohio4 that the constitution required the exclusion of such evidence upon state criminal trials. Petitioner did not raise the Mapp ground on either of his appeals; however, in 1962 he moved on the basis of Mapp for reargument before the Court of Appeals and in 1965 made a similar motion before the Appellate Division. Both motions were denied.
Meanwhile on May 19, 1964, while incarcerated in Auburn State Prison in the Northern District of New York, he petitioned for a writ of error coram nobis in the Kings County Supreme Court on an entirely different ground—that he had been denied due process by the prosecution's knowing use of perjured testimony upon his trial. In connection with this proceeding, on September 23, 1965 the state court directed the warden of Auburn Prison to deliver the petitioner to the New York City Commissioner of Correction, who in turn was ordered to produce petitioner before the Kings County Supreme Court in Brooklyn, New York, on October 29 and, upon the termination of the proceeding to return petitioner to the custody of the warden of Auburn Prison. In compliance with these directions, petitioner was delivered into the custody of the Commissioner of Correction at the New York City Penitentiary on Rikers Island, located within the Southern District of New York, from where he filed the instant federal petition. Later he was transferred to the Queens House of Detention in the Eastern District of New York. Both installations are under the jurisdiction of the Commissioner. Upon termination of the state proceeding, petitioner was returned, as the original order required, to the custody of the warden of Auburn Prison and thus to the Northern District of New York.
The state contends that because petitioner, while present in this district when he filed his petition, was then only in the temporary custody of the Commissioner and on the return day of this petition had already been returned to his original place of confinement outside the district, where he has since remained in custody of his original keeper, as required by the state order which commanded his appearance, this Court lacks jurisdiction to issue a writ. The Court does not pass upon this issue, however, since even assuming arguendo that jurisdiction were found to exist, the application for a writ is denied for failure to exhaust presently available state remedies.
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Agone v. State of New York
... ... Joseph AGONE, Petitioner, ... The STATE OF NEW YORK, Respondent ... No. 69 Civ. 3672 ... United States District Court S. D. New York ... October 17, 1969.304 F. Supp. 1140 ... Jiggetts v. Follette, 260 F. Supp. 301 (S.D.N.Y.1966); United States ex rel. Mahoney v. Thomas, 257 F.Supp. 928 (S.D.N.Y.1966) ... 5 Townsend v. Sain, 372 U.S. 293, 83 S. Ct ... ...