No. 133, Docket 21178.United States Court of Appeals, Second Circuit.
April 28, 1949. As Amended on Denial of Rehearing May 27, 1949.

Page 583

Appeal from the United States District Court for the Western District of New York.

Habeas corpus proceeding by the United States on the relation of James Martine, alias James E. Pandolfo, against Walter B. Martin, warden, Attica Prison, Attica, New York. From an order denying the application for the writ, the petitioner appeals.

Order affirmed.

On January 16, 1930, petitioner pleaded guilty in Kings County Court, New York, to a charge of robbery in the second degree. At that time, the petition states, petitioner was a boy of 17 and had never been convicted of any crime; he was an orphan without friends or relatives to aid in his defense. The petition alleges that he was not informed of his right to counsel, did not have counsel, and did not waive his right to counsel at any time. Subsequently he was paroled. Then, in 1938, he was indicted and pleaded guilty in Queens County Court to a charge of robbery in the third degree. He was sentenced to serve a term of from 10 to 20 years. He received this long sentence because he was treated as a second offender. Since 1938, he has brought many proceedings in the state courts to test the validity of the 1930 conviction; only two of these proceedings are relevant here. In 1946 a hearing was held in Kings County Court on application for a writ of error coram nobis. The petitioner appeared in his own behalf and testified that in 1930 he had not been advised of his right to counsel. Although the issue of his capacity intelligently to waive his right to counsel was raised by the papers, the testimony related solely to the question whether he had been advised of that right. The petition was denied. Petitioner had no right to appeal, and his petition for certiorari to the Supreme Court of the United States was denied.

In 1947 a New York statute was enacted, c. 706, L. 1947, which conferred the right of appeal from an order entered in a coram nobis proceeding to vacate a judgment of conviction. Thereupon petitioner filed a new motion for a writ of coram nobis in the County Court of Kings County. This motion was denied, and on January 2, 1948, petitioner served a notice of appeal from the denial. However, on June 14, 1948, the appeal was dismissed for lack of prosecution.[1] Meanwhile, on February 5, 1948, petitioner filed this petition for a writ of habeas corpus in the court below. This was denied on March 25, 1948.

[1] The dismissal of the appeal for want of prosecution was of course not included in the record before the District Court in the present proceeding, but it was agreed by counsel on argument that the appeal had been so dismissed.

Philip B. Kurland, of New York City (Richard F. Wolfson, of New York City, of counsel), for petitioner-appellant.

Nathaniel L. Goldstein, of Albany, N.Y. (Wendell P. Brown, of Albany, N.Y. and Louis Winer, of Cedarhurst, N.Y., of counsel), for respondent-appellee.

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Miles F. McDonald, of Brooklyn, N.Y. (Aaron Nussbaum, of Brooklyn, N.Y., of counsel), amicus curiae.

Before SWAN, CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

As petitioner’s counsel concede, the question whether petitioner was, at the time of his 1930 plea, advised of his right to counsel cannot now be relitigated in the federal courts. That issue is foreclosed, so far as this proceeding is concerned, by the decision of the County Court of Kings County, denying, after hearing, petitioner’s 1946 application for a writ of error coram nobis.

Petitioner here asserts denial of due process of law in that he was not in 1930 able intelligently to waive his right to counsel. The power of the federal courts to entertain the petition is limited by 28 U.S.C.A. § 2254, which provides that the petition shall not be granted “unless it appears that the applicant has exhausted the remedies available in the courts of the State”. The question is whether petitioner has met this test. By his application for a writ of error coram nobis in 1946, he exhausted the state remedies then available to him, for at that time the denial of such an application was not an appealable order. Subsequently, in 1947, the state statute was amended to give him a right of appeal, and he applied again for a writ of error coram nobis. This was denied, and although he served a notice of appeal, he failed to prosecute it and the appeal was dismissed. As we interpret 28 U.S.C.A. § 2254, the petitioner must have exhausted the state remedies available to him at the time of filing the petition for habeas corpus. This he failed to do, for he did not pursue his appeal to the highest New York court open to him. United States ex rel. Steele v. Jackson, 2 Cir., 171 F.2d 432, 433. Moreover, as the denial of the petitioner’s applications and his failure to prosecute his appeal in 1948 is not res judicata, Bojinoff v. People, 299 N.Y. 145, 85 N.E.2d 909, the New York courts are still open to him. Under these circumstances, it is distinctly not the function of the federal courts to consider the petitioner’s claim that New York has denied him due process of law.[2]

His petition must be dismissed, and we cannot consider the argument on the merits very ably presented by his assigned counsel.


[2] We do not mean to intimate any opinion one way or the other as to whether his state remedy would be “exhausted,” even if he could begin again in the state courts, if he once took his claim to the New York Court of Appeals.