United States v. Wilkins

• Decision Date: 03 August 1960
• Docket Number: Docket 25691.,No. 341,341
• Citation: 281 F.2d 707
• Parties: UNITED STATES of America ex rel. Jacob WISSENFELD, Relator-Appellant, v. Walter H. WILKINS, Warden, Attica State Prison, Attica, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

281 F.2d 707 (1960)

UNITED STATES of America ex rel. Jacob WISSENFELD, Relator-Appellant, v. Walter H. WILKINS, Warden, Attica State Prison, Attica, New York, Respondent-Appellee.

No. 341, Docket 25691.

United States Court of Appeals Second Circuit.

Argued June 10, 1960.

Decided August 3, 1960.

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Richard W. Hulbert, New York City (Anthony F. Marra, New York City, on the brief), for relator-appellant.

Frederick E. Weeks, Jr., Asst. Atty. Gen. of New York (Louis J. Lefkowitz, Atty. Gen. of New York and Irving Galt, Asst. Sol. Gen. of New York, New York City, on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.

LUMBARD, Chief Judge.

This is an appeal by the relator, Jacob Wissenfeld, from the dismissal of his petition for a writ of habeas corpus to obtain his release from New York's Dannemora State Hospital.¹ Wissenfeld is confined there under sentence of 13½ to 20 years imprisonment² as a third felony offender after his plea of guilty in October 1953 to a charge of burglary in the third degree.

Relator filed this petition for the writ — his fourth submitted to the federal court — in November 1958. His claim of violation of his federal constitutional rights, which we will presently describe in greater detail, is that his plea of guilty was induced by promises of the state prosecuting authorities, made without intention of adherence to them, that he would receive a 5 or 6 year sentence and, further, that his then assigned counsel connived with the state authorities to obtain his reliance upon these promises and his plea of guilty. The district court held a hearing upon these allegations at which Wissenfeld, testifying without the assistance of counsel, was the sole witness. Subsequently, the court entered brief findings stating that it was not convinced of the truth of relator's testimony and that "on the evidence * * * no such promise was made to him, and * * * his plea of guilty was not made in reliance on any such alleged promises, but was a voluntary plea made at the time he was represented by assigned counsel and that he particularly stated at the time of his plea that no promises had been made to him."

On this appeal relator contends, first, that the district court's findings, in view of relator's unrebutted testimony and certain comments of the state trial judge at the time of sentencing and certain circumstantial evidence, were clearly erroneous; second, he argues that the district court, by its failure either to assign counsel to assist him in the presentation of his case or itself to direct the appearance of those who had allegedly cooperated in inducing his plea of guilty and whose testimony could reasonably be expected to support or discredit his story, abused its discretion because it deprived relator of a fair and meaningful hearing upon his claims. We do not think the court's findings were clearly erroneous, but having regard for all the circumstances of this case, we agree that the hearing afforded relator was inadequate and therefore reverse the order dismissing the petition and remand the case for a further hearing.

Prior to a consideration of the points urged by relator, two preliminary questions must be considered. The first is whether relator has exhausted his state court remedies and, more specifically, whether his failure to apply to the Supreme Court for a writ of certiorari after the New York state courts had rejected his federal constitutional claim bars him from obtaining relief in the federal district court by means of a writ of habeas corpus. The second preliminary matter is whether relator's petition for the writ states upon its face a claim of a federal constitutional violation.

Exhaustion of State Remedies.

The district court found as a "fact," though without any statement of the basis for its finding, that relator had exhausted his state court remedies. Since the state does not challenge this finding on appeal, we could accept this determination without examination of its correctness.³ See Thomas v. State of Arizona, 1958, 356 U.S. 390, 392 note 1, 78 S.Ct. 885, 2 L.Ed.2d 863. However, in view of the important role the exhaustion doctrine has assumed in the maintenance of a proper balance of authority between the national and state governments in our federal system, see Darr v. Burford, 1950, 339 U.S. 200, 204-208, 70 S.Ct. 587, 94 L.Ed. 761; 28 U.S.C. § 2254, we think it is appropriate that we consider the exhaustion question, although it has not been presented to us by the parties. We are, of course, in no way bound by the district court's determination of this question, because, regardless of the appellation attached to the lower court's finding, the question whether state remedies have been exhausted is one of law rather than fact.

In December 1954 and again in February 1955, Wissenfeld presented his claim that his plea of guilty was the result of false promises to the New York state courts by writ of error coram nobis. The claim was rejected by the Westchester County Court without a hearing, and this decision was affirmed by the Appellate Division, People v. Wissenfeld, 1956, 1 A.D.2d 1047, 153 N.Y.S.2d 573, and by the Court of Appeals, 1957, 2 N.Y.2d 812, 159 N.Y.S. 2d 831, 140 N.E.2d 744. No application for certiorari was submitted to the Supreme Court until about nine months after the decision by the New York Court of Appeals, and the application, when finally presented, was rejected by the clerk as filed out of time. Relator then presented a petition for a writ of habeas corpus to the federal court, which petition was dismissed on the ground that relator had not exhausted his state court remedies because of his failure to file a timely application for certiorari. In part in an effort to cure this defect, relator filed a new coram nobis application in the Westchester County Court, but this petition was denied on the ground that no "materially new or additional facts" were presented;⁴ the Appellate Division denied leave to appeal in forma pauperis, an order which is not appealable to the Court of Appeals. Relator thereupon filed the present habeas corpus application.

The normal rule is that an application to a federal court for a writ of habeas corpus by a prisoner confined under a state court judgment of conviction will not be entertained until the prisoner has exhausted his state court remedies and has applied to the Supreme Court for review either by appeal or certiorari. Darr v. Burford, supra; Ex parte Hawk, 1944, 321 U.S. 114, 116-117, 64 S.Ct. 448, 88 L.Ed. 572. In special circumstances, however, application to the Supreme Court may be dispensed with. E. g., Thomas v. State of Arizona, supra, 1958, 356 U.S. at page 392 note 1, 78 S.Ct. at page 886; White v. Ragen, 1945, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. "Whether such circumstances exist calls for a factual appraisal by the district court in each special situation." Frisbie v. Collins, 1952, 342 U.S. 519, 521, 72 S.Ct. 509, 511, 96 L.Ed. 541.

Though relator failed to make timely application for certiorari after the denial of relief by the New York Court of Appeals, it may be possible that special circumstances exist in this case which would excuse compliance with this requirement. Relator's petition submitted to the district court alleges that some four weeks after the Court of Appeals decision, long before the expiration of the 90-day period allowed for the filing of petitions for certiorari, he was transferred from Attica State Prison to New York City, in order that a hearing might be held on his petition attacking the validity of one of his earlier convictions. Wissenfeld was held in New York City for more than eight months, and, though the record is far from clear on the point, it appears that during this time he did not have access to his papers and legal materials. If this was due simply to Wissenfeld's neglect in not bringing his papers with him from Attica, or if, though he realized that he would be confined in New York City for some time, he made no effort through prison officials to procure his papers, his failure to apply for certiorari cannot be excused. If, on the other hand, Wissenfeld was deprived of his papers at the time he left Attica and was prevented by the state from obtaining them during his lengthy detention in New York City, the state's conduct might well be a "special circumstance" which would excuse the relator's failure to file an application for certiorari. See United States ex rel. Rooney v. Ragen, 7 Cir., 1946, 158 F.2d 346, 352, certiorari denied 1947, 331 U.S. 842, 67 S.Ct. 1532, 91 L.Ed. 1853. Since the record is devoid of information as to the reason why Wissenfeld did not have access to his papers while detained in New York City, we must leave this question for exploration and resolution by the district court in light of all the facts disclosed by a further hearing.

Entirely independent of the above ground for invocation of the special circumstances rule, it is possible that relator's failure to apply for certiorari, even if due to his own neglect, should not now bar relief in the federal court, since it appears that the defect can no longer be cured by a new application to the New York courts. As indicated by the denial of Wissenfeld's most recent application to the Westchester County Court, the state courts are now closed to him on an independent state ground of decision — the repetitious character of his petitions — from which certiorari will not lie, see Wade v. Mayo, 1948, 334 U.S. 672, 680-681, 68 S.Ct. 1270, 92 L.Ed. 1647; Fox Film Corp. v. Muller, 1935, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158. Unless the exhaustion statute, 28 U.S.C. § 2254, be regarded as requiring an applicant to exhaust not only presently available state remedies but also those formerly open but now foreclosed to him, relator would not now be barred by his earlier failure to apply for certiorari....