United States v. La Vallee

• Decision Date: 31 March 1961
• Docket Number: Civ. No. 8422.
• Citation: 194 F. Supp. 351
• Parties: UNITED STATES of America ex rel. William WALKER, Petitioner, v. J. Edwin LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent.
• Court: U.S. District Court — Northern District of New York

194 F. Supp. 351

UNITED STATES of America ex rel. William WALKER, Petitioner, v. J. Edwin LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent.

Civ. No. 8422.

United States District Court N. D. New York.

March 31, 1961.

William Walker, petitioner pro se.

Louis J. Lefkowitz, Atty. Gen. of New York, Raymond B. Madden, Asst. Atty. Gen., of counsel, for United States.

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

JAMES T. FOLEY, District Judge.

This petition for a federal writ of habeas corpus is another of the large number filed by state prisoners of New York in recent years in this District Court. The issue concerns the use of an alleged coerced and involuntary confession in the State trial. Important cases have passed through this Court with this point in issue, and among them are: United States ex rel. Caminito v. Murphy, D.C., 127 F.Supp. 689; 2 Cir., 222 F.2d 698, certiorari denied 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788; United States ex rel. Wade v. Jackson, D.C., 144 F.Supp. 458; 2 Cir., 256 F.2d 7, certiorari denied 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158; United States ex rel. Corbo v. LaVallee, 2 Cir., 270 F.2d 513, certiorari denied 361 U.S. 950, 80 S.Ct. 403, 4 L.Ed.2d 382; United States ex rel. Samuel Tito Williams v. LaVallee, D.C., 170 F.Supp. 582; 2 Cir., 276 F.2d 645, Certiorari Denied 364 U.S. 922, 81 S.Ct. 287, 5 L.Ed.2d 261; United States ex rel. Alvarez v. Murphy, 2 Cir., 277 F.2d 304; pet. cert. filed Sup.Ct. May, 1960, still undetermined; United States ex rel. Kiernan v. LaVallee, (co-defendant Wade), D.C., 191 F.Supp. 455, decided by me January 24, 1961; no appeal taken. Caminito, Wade and Kiernan are now free from confinement. This listing is made to emphasize the careful scrutiny and independent examination that must be given the challenge of coerced confession under the many recent rulings of the United States Supreme Court. Spano v. People of State of N. Y., 360 U.S. 315, 321, note 2, 79 S.Ct. 1202, 3 L.Ed.2d 1265.

After trial by jury the petitioner was convicted of Robbery in the First Degree in the County Court of Kings County, N. Y., during December, 1952. On January 12, 1953 he was sentenced by Judge Leibowitz as a second felony offender to a term of thirty to sixty years. Later the Judge, apparently on his own volition, on February 6, 1953, voluntarily reduced the minimum sentence to fifteen years, and it is under that sentence the petitioner is presently confined. The petitioner was allowed to appeal as a poor person by the Appellate Division, Second Department, and the judgment of conviction was unanimously affirmed with no opinion on December 31, 1954. Leave to appeal to the Court of Appeals, New York, was denied by Hon. Adrian P. Burke, Associate Judge of that Court by letter dated January 27, 1955 (People v. McCarthy, 250 N.Y. 358, 165 N.E. 810; Section 520, Code Crim.Proc.N.Y.). Later, September 5, 1956, Judge Burke advised the petitioner that he could not file a petition for certiorari to the United States Supreme Court because his discretionary decision as a single judge was not a judgment of the Court of Appeals. The Judge also advised that he might apply to the Federal District Court for a writ of habeas corpus. By letter of July 16, 1956 to the petitioner, Judge Burke reaffirmed his previous denial of leave to appeal. The petitioner pursued no other remedies in the State Courts, did not file a petition for certiorari in the United States Supreme Court, and his present petition received in this office dated January 5, 1961 is his first formal petition for relief in this District Court.

I issued an order to show cause, and lengthy affidavits have been filed in opposition. There is much discussion on the merits in each affidavit, and also the point is emphasized that petitioner has not completed the exhaustion of his state remedies by filing a petition for certiorari in the United States Supreme Court. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Irvin v. Dowd, 359 U.S. 394, 404-407, 79 S.Ct. 825, 3 L.Ed. 2d 900. It may be true that this should be done before the District Court reaches out to the merits and in most instances it is and should be done, even where the Court of Appeals, New York, is bypassed. United States ex rel. Marcial v. Fay, 2 Cir., 247 F.2d 662. In United States ex rel. Alvarez v. Murphy, 2 Cir., 246 F.2d 871, 874, the petitioner there was also denied leave to appeal by the Court of Appeals, but in his post conviction procedure of coram nobis, entertained by the State Courts, he did file for certiorari and it was held that was sufficient compliance with the exhaustion of available state remedies statute. 28 U.S.C.A. § 2254; see United States ex rel. Cuomo v. Fay, 2 Cir., 257 F.2d 438, 441. A recent ruling emphasizes that with little exception the question heard by the State Courts should be offered for review to the Supreme Court. United States ex rel. Samuel Tito Williams v. LaVallee, 2 Cir., 276 F.2d 645.

However, there is persuasive reasoning in the Williams case that in my judgment fits the situation here very well. Judge Moore writes that the issue of coerced confession might be raised by the collateral remedy of writ of error coram nobis in New York even after adverse...