Before, CLARK, Chief Judge, and MEDINA, HINCKS, LUMBARD and WATERMAN, Circuit Judges.
This is an appeal from a denial of a petition for a writ of habeas corpus. Appellant is now serving a 10 to 30 year sentence imposed on him as a second-felony offender by the County Court of Kings County, New York, on a plea of guilty to second-degree robbery. His contention is that the sentence as a second offender is invalid because the prior conviction upon which it was based was had without due process of law. A certificate of probable cause and leave to appeal in forma pauperis were granted by this Court on October 23, 1956, and the case was argued to the Court en banc.
Appellant's first felony conviction was on January 11, 1935, when the County Court of Kings County sentenced him to a term of 7 1/2 to 15 years upon a plea of guilty to the charge of robbery in the second degree. On June 6, 1949, he again pleaded guilty to the charge of robbery in the second degree in the same court and was sentenced, as a second-felony offender, to a term of 10 to 30 years' imprisonment. He was transferred from Sing Sing Prison to Green Haven Prison on February 28, 1952, and his maximum sentence expires on March 28, 1982. We are told that appellant's earliest date of parole is January 2, 1959.
Appellant's first attack upon his 1935 conviction was by application for a writ of error coram nobis which was denied without a hearing by Judge Goldstein on March 14, 1951. He appealed to the Appellate Division of the New York Supreme Court, Second Department, and applied for leave to prosecute his appeal in forma pauperis, which was denied and his appeal was dismissed on December 3, 1951, for lack of prosecution. Appellant made a second attempt to attack the sentence of January 11, 1935, by filing a petition for a writ of habeas corpus, which petition was denied by the Supreme Court, Dutchess County, on May 21, 1952, on the ground that the writ of error coram nobis is the exclusive remedy in New York for such attacks. His second application for coram nobis, which is the foundation for the petition for habeas corpus in the United States District Court now before us, was denied by Judge Leibowitz, again without a hearing, on December 2, 1955. Further particulars concerning appellant's efforts to review the order of Judge Leibowitz in the New York state courts will appear in the ensuing discussion.
We are met at the threshold with the contention that the application is premature since appellant has not exhausted his state remedies as required by 28 U.S.C. § 2254.*fn1 Appellant does not deny that he has not obtained an adjudication of his claim by the New York Court of Appeals, the highest court of the state; and appellee for its part does not deny that appellant is a pauper and has done everything possible under the circumstances to secure such an adjudication.
Appellant timely filed a notice of appeal from the order of Judge Leibowitz to the Appellate Division of the New York Supreme Court, Second Department, and petitioned for leave to proceed as a poor person, which was denied. He thereupon applied to the Court of Appeals for permission to appeal but was told that the Court of Appeals had no jurisdiction under such circumstances. He then applied to the Supreme Court of the United States for a writ of certiorari, which was denied. Johnson v. People of State of New York, 351 U.S. 968, 76 S. Ct. 1033, 100 L. Ed. 1487. His petition for a writ of habeas corpus was denied by the District Court, on the ground that, "the petitioner has not exhausted his State Court remedies." We also find that it was denied on the merits, as will appear in a later part of this opinion.
Although there is no statute or rule of court in New York enabling an indigent defendant to appeal to the Appellate Division from a denial of a writ of error coram nobis, the Appellate Division is considered to have inherent power to authorize an appeal on handwritten papers without requiring fees. Appellee informs us that it is the practice of the Appellate Division to refuse such permission, even though satisfied that the defendant is a pauper, where it appears that the appeal is without merit. The New York Court of Appeals will not review a denial by the Appellate Division of permission to proceed as a poor person.
In the case at bar, appellee tells us that upon appellant's application to the Appellate Division to proceed as a poor person, "The opposing affidavit did not controvert the allegation of poverty.A fortiori the Appellate Division's denial of forma pauperis could only have been based on an examination of the merits." Hence, we have this situation: appellant has obtained an adjudication of his claim by the next to highest court of the state, which under state law is not reviewable by the state's highest court unless appellant pays certain fees and expenses which he cannot afford. Yet, despite the concession that appellant is financially unable to proceed further in the state courts, it is urged that there has been no showing "that the applicant has exhausted the remedies available in the courts of the State, or that there is * * * the existence of circumstances rendering such process ineffective to protect the rights of the prisoner" within the meaning of Section 2254.
In all candor we must acknowledge that such was at one time the law in this circuit. United States ex rel. Kalan v. Martin, 2 Cir., 205 F.2d 514; United States ex rel. Rheim v. Foster, 2 Cir., 175 F.2d 772, and Judge McGohey's ruling was fully in accord with those decisions. Although until now we have not expressly overruled these cases, United States ex rel. Jordan v. Martin, 2 Cir., 238 F.2d 623, we have indicated at least a willingness to reconsider them. In United States ex rel. Embree v. Cummings, 2 Cir., 233 F.2d 188, 189, we said, "Where the only state remedies are inaccessible to a prisoner because of his proverty, his failure to pursue those remedies does not bar him from applying to the federal courts for relief." Although that case is perhaps distinguishable, for the Connecticut procedure there under consideration made no provision whatever for a post-conviction remedy in forma pauperis, we hold the principle equally applicable here. Section 2254 does not deprive a prisoner of access to the federal courts where his failure to exhaust state remedies is due solely to his financial inability to do so.
Our present holding is in harmony with the policy underlying Section 2254. The requirement of exhaustion exists because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 590, 94 L. Ed. 761. Where, as here, the state courts decline to proceed further, the time is ripe for federal habeas corpus if such is warranted by the factual allegations of the petition.
Furthermore, two recent decisions of the United States Supreme Court have cast doubt upon the constitutionality of our former position. In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, the Court held that a state may not constitutionally fail to provide an indigent defendant with a transcript needed to prosecute his appeal, since it would be an unreasonable discrimination to provide more affluent defendants with a means of review not available to poor persons. In Johnson v. United States, 352 U.S. 565, 77 S. Ct. 550, 551, 1 L. Ed. 2d 593, the court held that 28 U.S.C. § 1915, which proscribes appeals in forma pauperis if the trial court certifies that the appeal is not taken in good faith, "is not final in the sense that the convicted defendant is barred from showing that it [the certificate] was unwarranted and that an appeal should be allowed." We take these decisions as indicating that the Constitution requires that poor defendants must be afforded the same opportunity to secure review of their convictions as are available to those who can afford to pay the necessary costs and expenses of an appeal.*fn2 To deny poor persons the right to federal habeas corpus on the ground that they did not utilize state procedures beyond their means would clearly conflict with at least the spirit of these decisions.
It may be that the New York Court of Appeals has recently adopted a somewhat more liberal view toward the allowing of appeals in forma pauperis the assignment of counsel to prosecute such appeals; see People v. Kalan, 1 N.Y.2d 922, 154 N.Y.S.2d 980, 136 N.E.2d 920; People v. Kalan, 2 N.Y.2d 278, 159 N.Y.S.2d 480, 140 N.E.2d 357; but we cannot see how this possible change of view in any way affects the disposition of the case now before us.
We hold that 28 U.S.C. § 2254 is not a bar to the application for the writ in the case at bar.
We now turn to the merits. While there is some basis for the contention that Judge McGohey did not pass on the merits, we think the record taken as a whole shows that he did. His memorandum of June 28, 1956 reads:
"The petition shows on its face that the petitioner has not exhausted his State Court remedies. See [United]. [States]. ex rel. Kalan v. Martin, 2 [Cir]., 205 F.2d 514; [United]. [States]. ...