The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
Petitioner, now serving several concurrent sentences, the longest of which is from forty to sixty years, imposed pursuant to a judgment of conviction on a multiple count indictment
entered upon a jury verdict rendered on January 16, 1959, in the Supreme Court of New York, Kings County,
seeks his release upon federal habeas corpus on two grounds: (1) his confession, admitted upon the trial was involuntarily made; and (2) he was denied a fair trial in that the jury was informed, to his substantial prejudice, of a prior conviction of second degree rape.
Additionally, in answering the state's contention that he waived his right to assert the first of these claims by failing to raise it at trial, petitioner contends that he was, at the time of his trial, mentally incompetent and unable to make or assist in his defense.
With respect to his first contention, petitioner claims that his confession was obtained only after five or six hours of constant questioning, during which time he was given no rest, food or water, and only after he reasonably understood that the police had threatened to jail his wife, the mother of his two infants. Petitioner claims that he has made several applications for coram nobis relief on the ground that his confession was involuntary. However, it appears that he has never raised in his coram nobis applications the factual allegations, specified above, which he now raises here. Moreover, he did not appeal from any of the denials of these coram nobis applications.
Thus, neither the lower nor appellate state courts have had the opportunity to pass upon the merits of petitioner's fully developed claims. In order to have exhausted his state remedies, petitioner must have directly and fairly presented his federal claims to the state courts,
including the appellate courts.
He has neither fairly presented his claims nor appealed.
The availability of state relief exists. The New York courts do not apply the doctrine of res judicata in coram nobis proceedings;
he therefore may begin anew. And he has a statutory right to take an appeal from a denial of coram nobis relief.
After he has presented to the state courts for their full consideration all the claims he urges here, including his claims regarding the introduction of a prior conviction
and his mental incompetency at the time of trial, he will properly have given "[the] State in the first instance * * * the opportunity to vacate a conviction resting upon alleged constitutional violations."
Accordingly, the petition is dismissed for failure to exhaust ...