Before HINCKS, PICKETT and MOORE, Circuit Judges.
The sole question presented upon this appeal is whether the relator has exhausted his remedies under the law of New York as required by 28 U.S.C.A. § 2254.*fn1 The District Court held that he had not but, recognizing that the question was one of some difficulty, granted relator a certificate of probable cause, 28 U.S.C.A. § 2253, and leave to appeal in forma pauperis. We assigned counsel to present the appeal.
The facts controlling the exhaustion question are undisputed. On October 29, 1953, the appellant pleaded guilty in Kings County court to the crime of robbery in the first degree. At the time of the plea, while represented by an attorney, Nathan Schor, the following transpired:
"Q. Louis Cuomo, do you understand what Mr. Schor is saying. He is offering to plead you guilty to Robbery in the First Degree. By that plea you admit that on October 8th with a gun you held up a gasoline station in which there was Mr. Harry Lau and Mr. Basileo?
"It is our understanding that this plea is accepted with the understanding that you will go over to the district attorney's office and discuss this case and other cases with them and if the district attorney is satisfied that you have been helpful, that he will consent to reduce the plea to at least Robbery Second Degree and, perhaps, lower, depending on the amount of help you give him. Are you guilty of that crime? A. Yes.
"Q. You want to plead guilty? A. Yes.
"The Court: Plea is satisfactory to the Court and the District Attorney.
"Clerk Medwon: Louis Cuomo, do you now in the presence of your attorney, Mr. Nathan R. Schor, who stands besides you, wish to withdraw your plea of not guilty heretofore entered and you now wish to plead guilty to the crime of Robbery, First Degree to cover all counts of the indictment, do you?
"The Defendant Cuomo: Yes."
Apparently these conversations were fruitless and no recommendation to reduce the plea was made. Before sentence, on November 19, 1953, a request was made to withdraw the plea of guilty, which was denied. Relator was then sentenced as a third offender to a term of 15 to 20 years. No appeal was taken from the conviction or sentence, or denial of the motion to withdraw the plea.
On May 6, 1954, relator sought a writ of error coram nobis in the sentencing court. The writ was dismissed after a hearing and no appeal was taken.
On September 22, 1954, relator applied to the New York Supreme Court, Dutchess County, for a writ of habeas corpus. On October 18, 1954, a hearing was held on the writ but the relator stated that because of "certain reasons" he was unable to go forward. It is asserted that during this period his legal papers were taken from him and he was unable to prepare for the hearing. The writ was dismissed on November 18, 1954 and no appeal was taken. On August 23, 1955, the relator moved to dismiss the respondent's return to the writ of habeas corpus - the very writ which had been denied almost a year before. This motion was denied on October 28, 1955. On November 11, 1955, relator appealed to the Appellate Division from this denial and a few days later requested that he be allowed to proceed with the appeal in forma pauperis. On January 9, 1956, the Appellate Division denied leave to proceed in forma pauperis on a typed record and typed brief. The relator then petitioned the Supreme Court for a writ of certiorari but the application was denied on May 21, 1956, 351 U.S. 942, 76 S. Ct. 841, 100 L. Ed. 1468. A few days later the State of New York moved in the Appellate Division to dismiss the relator's appeal. This motion was denied on condition that the relator perfect his appeal in the normal course in time to be heard at the October 1956 term of the Appellate Division. The relator filed a ...