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July 27, 1966

UNITED STATES of America ex rel. Andrew WALLEN, Petitioner,
WARDEN OF GREEN HAVEN STATE PRISON, AT STORMVILLE, NEW YORK, and the People of the State of New York, Respondent

Edelstein, District Judge.

The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

This is an application for a writ of habeas corpus on the grounds that the applicant is being held in custody in violation of the Constitution of the United States, 28 U.S.C. § 2241(c)(3) (1964). Petitioner was convicted, after a jury trial in the New York County Court of General Sessions, of two counts of robbery in the first degree and one count of possessing a pistol after prior conviction. He was sentenced on January 9, 1948, to concurrent terms of from fifteen to thirty years on each of the robbery counts, and sentence was suspended on the conviction for possession of a gun after prior conviction. Petitioner filed a notice of appeal in February 1948, but in January 1950 the appeal was dismissed for failure to prosecute. In July 1963 petitioner sought a writ of error coram nobis in the state courts alleging, in effect, that the prosecutor knowingly used perjured testimony at his trial. The petition for a writ of error coram nobis was denied without a hearing by the Supreme Court of New York County and in December 1963 he was granted leave to appeal in forma pauperis from that decision and counsel was assigned. On appeal from the denial of coram nobis petitioner was permitted to reinstate his appeal from the original conviction in 1948. Before the Appellate Division petitioner also alleged the use at trial of evidence obtained as a result of an unlawful search and seizure and the introduction into evidence of involuntary confessions. The Appellate Division, without remanding for a hearing and without opinion, unanimously affirmed both the judgment of conviction and the denial of coram nobis. The New York Court of Appeals denied leave to appeal on July 8, 1965. Petitioner subsequently commenced this action for habeas corpus and, after reviewing the State Court proceedings, this court ruled that petitioner had exhausted his presently available state remedies *fn1" and ordered counsel appointed.

 In a brief subsequently filed on behalf of petitioner, assigned counsel urges that petitioner was denied due process by: (1) the prosecution's knowing use of perjured testimony; and (2) the reference at trial to petitioner's prior conviction. It is also alleged that: (3) incriminating statements obtained from petitioner as a result of coercion and in violation of his right to counsel were used against him; and (4) the fruit of an unlawful search and seizure was introduced at trial.

 Petitioner's first contention (the knowing use of perjured testimony) is based solely on the transcript of his trial and the transcript of proceedings related to the sentencing of a codefendant, William Maniscalco, who testified against petitioner at trial. Since there is no dispute about the facts petitioner has not sought a hearing as to this claim, which was the sole issue in the state coram nobis decision. The dispute relates to the legal interpretation applicable to the conceded facts and therefore no hearing is required. See Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). After examining the proceedings relevant to the sentencing of William J. Maniscalco and the transcript of Maniscalco's testimony against petitioner at trial this court finds that there was no perjury, the jury was not misled, and petitioner was not, in this regard, denied a fundamentally fair trial.

 Petitioner's second contention (raised for the first time in appointed counsel's brief) is that pursuant to the indictment's inclusion of the crime of criminally possessing a pistol after prior conviction, petitioner's prior conviction for robbery was alleged in the indictment, referred to by the prosecution in its opening statement and proved before the jury. Petitioner urges that this procedure prejudiced the jury against him and deprived him of a fair trial, see Lane v. Warden, 320 F.2d 179 (4th Cir. 1963), on the robbery counts of which he was convicted and for which he is now in prison.

 This issue was not presented in the coram nobis proceeding or in the reinstated appeal. Since the denial of due process may normally be tested in the New York courts by coram nobis, see e.g., People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); People v. Codarre, 10 N.Y.2d 361, 223 N.Y.S.2d 457, 179 N.E.2d 475 (1961); People v. Silverman, 3 N.Y.2d 200, 165 N.Y.S.2d 11, 144 N.E.2d 10 (1957); People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6, 144 N.E.2d 6 (1957), this court would normally remit petitioner to his state remedy. 28 U.S.C. § 2254 (1964); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); United States ex rel. Krzywosz v. Wilkins, 336 F.2d 509, 511 (2d Cir. 1964); cf. United States ex rel. Martin v. McMann, 348 F.2d 896 (2d Cir. 1965). The New York courts, however, have uniformly held that the procedure here challenged does not violate due process. In People v. De Santis, 305 N.Y. 44, 110 N.E.2d 549 (1953) the Court of Appeals ruled that:

"It was not reversible error to include in the indictment allegations charging defendant as a prior offender, and to receive proof thereof at the trial. This has long been the settled practice in this State, Johnson v. People, 55 N.Y. 512; People v. Sickles, 156 N.Y. 541, 51 N.E. 288; People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, 58 A.L.R. 9, and countless convictions were based on such indictments." Id., 305 N.Y. at 46, 110 N.E.2d at 549.

 Judge Fuld dissented on the grounds of "essential concepts of fairness" which, he urged, required that the district attorney use the statutory procedure relevant to the sentencing of second offenders rather than including the prejudicial material in the indictment and presenting it to the jury. Prior to 1961 the complained of procedure was authorized by § 275-b of the New York Code of Criminal Procedure where "such prior conviction affects the degree of crime charged in the indictment." Convictions resulting from this procedure have been upheld by the New York courts even where the first conviction had been subsequently set aside for denial of right to counsel, People v. Branton, 221 N.Y.S.2d 496 (Nassau County Ct.1960), or where the defendant admitted his former conviction and objected to the introduction of proof on the grounds that there was no issue upon which the jury could pass. People v. Sickles, 156 N.Y. 541, 51 N.E. 288 (1898). In 1961, § 275-b was amended to preclude an accusation of prior conviction in the indictment (confining the allegation to other court papers) but to permit evidence of a prior conviction at trial if the defendant denied the conviction or stood mute when arraigned out of the jury's hearing. In People v. Blume, 12 N.Y.2d 705, 233 N.Y.S.2d 761, 186 N.E.2d 120 (1962), cert. denied, 374 U.S. 843, 83 S. Ct. 1897, 10 L. Ed. 2d 1062 (1963) the New York Court of Appeals declined to apply the 1961 amendment to cases tried prior to the statute's amendment, but which were apparently still pending on appeal, stating that "such construction does not deny due process of law or the equal protection of the law." Although it might be argued that the Blume case decided only that failure to apply the 1961 amendment to cases pending on direct appeal would not deny due process or equal protection and expressed no opinion on the Constitutionality of the procedure itself, the citation in the Blume case to In the Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N.Y. 261, 130 N.E. 288 (1921) (Cardozo, J.), does not support such an interpretation. The relevant portion of the Berkovitz opinion indicated:

"Changes in the form of remedies are applicable to proceedings thereafter instituted for the redress of wrongs already done. * * * A different problem arises when proceedings are already pending. There is then a distinction to be noted. The change is applicable even then if directed to the litigation in future steps and stages. * * *. It is inapplicable unless in exceptional conditions, where the effect is to reach backward, and nullify by relation the things already done. * * * There can be no presumption, for illustration, that a statute regulating the form of pleadings or decisions is intended to invalidate pleadings already served * * *." Id. at 270, 130 N.E. at 290.

 By treating the amendment to § 275-b as simply altering the form of "pleadings" it was thus unnecessary to apply the change even to a case still pending in the normal appellate process. See generally Simonson v. International Bank, 14 N.Y.2d 281, 288-290, 251 N.Y.S.2d 433, 200 N.E.2d 427 (1964). Since the New York courts have ruled that legal changes of Constitutional dimension will be applied to cases still pending in the normal appellate process, see People v. Muller, 11 N.Y.2d 154, 227 N.Y.S.2d 421, 182 N.E.2d 99 (1962); People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 (1961), the proper interpretation of Blume is that the statutory change in question was deemed one of form or procedure and did not affect any Constitutional right. Such a construction of the statute is fully consistent with prior New York case law. Moreover, there is nothing in the cases applying Blume, see People v. Grande, 19 A.D.2d 655, 241 N.Y.S.2d 917 (2d Dept.1963) (memorandum decision); People v. Shaw, 18 A.D.2d 823, 236 N.Y.S.2d 1019 (2d Dept.) (memorandum decision), cert. denied, 375 U.S. 847, 84 S. Ct. 101, 11 L. Ed. 2d 74 (1963), to cast doubt upon the prior law and Blume did in fact affirm a conviction based on the same procedure challenged here. There appears no possibility that the New York courts would afford petitioner relief and it is therefore appropriate to decide the question raised.

 The Fourth Circuit's position in Lane v. Warden, 320 F.2d 179 (4th Cir. 1963) tends to support petitioner's contention that he has been denied due process. But in the instant case, unlike Lane petitioner's indictment was not read to the jury at the start of trial nor were the details of the prior conviction presented. Petitioner, in effect, would have this court broadly construe Lane as holding that any reference to a prior conviction in the prosecution's opening statement or the introduction of any evidence of a prior conviction (assuming that the defendant did not take the stand or put his character in issue) is per se a denial of due process even though the prior conviction is a necessary element of the crime for which the defendant is on trial.

 The Fifth Circuit, apparently construing Lane in a manner similar to petitioner's contention here, has expressly refused to follow it. See e.g., Reed v. Beto, 343 F.2d 723 (5th Cir. 1965) (Friendly, C.J. sitting by designation and joining in the opinion), cert. granted, 382 U.S. 1025, 86 S. Ct. 649, 15 L. Ed. 2d 539 (1966); Breen v. Beto, 341 F.2d 96 (5th Cir. 1965). The Ninth Circuit has declined to comment on Lane, Pike v. Dickson, 323 F.2d 856, 860 n. 5 (9th Cir. 1963), cert. denied, 377 U.S. 908, 84 S. Ct. 1164, 12 L. Ed. 2d 179 (1964), and the Second Circuit's position can only be described as less than definite. Compare United States ex rel. Shaw v. Wilkins, M.R. 364 2d Cir., Mar. 12, 1965 (denying certificate of probable cause although similar due process contention raised); United States ex rel. Lewis v. LaVallee, M.R. 669, 2d Cir., October 25, 1965, cert. denied, Lewis v. LaVallee, 382 U.S. 1029, 86 S. Ct. 653, 15 L. Ed. 2d 542 (1966) (same), with United States v. Martinez, 333 F.2d 80, 82 (2d Cir.), cert. denied, 379 U.S. 907, 85 S. Ct. 199, 13 L. Ed. 2d 178 (1964) (citing Lane with approval). The only case in this district cited by either of the parties, United States ex rel. Jenkins v. Follette, 65 Civ. 3574, S.D.N.Y., Dec. 29, 1965, 257 F. Supp. 533, adopts the 5th Circuit position but also distinguishes Lane on its facts.

 The due process clause of the Fourteenth Amendment has long been construed to guarantee fundamental fairness in state criminal proceedings, Palko v. State of Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), but of late the concept of fundamental fairness has undergone substantial expansion. See, e.g., Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (June 13, 1966); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). The facts in Lane cried out for relief.

"At the outset of Lane's trial the three indictments, each averring in repetitious fashion the details of two prior convictions for violations of the Maryland narcotics laws, were read to the jury. * * * Moreover, the likelihood of prejudice was enhanced in this case by the fact that the prior convictions of which the jurors were informed involved narcotics violations ...

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