UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT NEW YORK.
June 29, 1956
PEOPLE of the STATE OF NEW YORK ex rel. Louis CUOMO, Petitioner,
Warden Edward M. FAY, Respondent.
The opinion of the court was delivered by: MCGOHEY
McGOHEY, District Judge.
The writ applied for by the petitioner was refused by this court on February 23, 1956, (1) because he had failed to exhaust his State remedies, 28 U.S.C.A. § 2254, and (2) because he had failed to sustain his burden to show that he was denied due process by the New York Appellate Division when it refused to permit him to appeal in forma pauperis from a denial by the New York Supreme Court of his motion to dismiss respondent's return to a writ of habeas corpus. On March 27, 1956, Cuomo petitioned the United States Supreme Court for a writ of certiorari. The petition was denied on May 21, 1956. Cuomo v. People of State of New York, 351 U.S. 942, 76 S. Ct. 841, 100 L. Ed. 1468. Evidently the petitioner feels that since he has been denied certiorari, this court may now properly entertain his petition for a writ of habeas corpus. However, the petitioner's appeal to the New York Appellate Division has never been dismissed. Respondent did move to dismiss it on May 29, 1956, but, on June 22, 1956, this motion was denied on condition that the petitioner perfect his appeal for the October, 1956 Term. When State remedies have not been exhausted this court may not grant habeas corpus merely because the petitioner has unsuccessfully petitioned the United States Supreme Court for certiorari. See Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572; Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761; Brown v. Allen, 344 U.S. 443, 486-487, 73 S. Ct. 397, 97 L. Ed. 469.
The petition is dismissed on the merits and the writ is denied.
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