The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
In this habeas corpus proceeding petitioner alleges that a 1942 conviction was obtained by a coerced confession. Previously in this Court he alleged that in a variety of ways he was denied his right to appeal that conviction.
Despite years of consideration by more than a score of trial and appellate judges, we are almost as far as we ever were from an answer to the mixed question of fact and law posed by petitioner: were his constitutional rights violated by the state's use of a coerced confession or by denial of the right to appeal? While the law's response in this twenty-five year old case may never be satisfactory because of the lapse of time, petitioner is entitled to an opportunity to prove his claim. An omnibus evidentiary hearing in this Court is ordered to try the merits of all claims -- whether or not previously raised -- respecting the constitutionality of the 1942 conviction.
Since there is neither a central filing system nor a single state legal office representing New York in post-conviction proceedings, we cannot be certain of the number of applications arising out of petitioner's 1942 conviction. So far as we have been able to determine with the aid of the New York Attorney General, present and former counsel of petitioner, and our own examination of the records of this and other courts, there have already been nine independent applications to trial courts -- three in the federal courts -- and eight appellate decisions. There has been an evidentiary hearing on one aspect of the right to appeal allegations and none on the merits of the coerced confession claim.
The known applications are listed below:
Date Court Claim Disposition
1. March, Clinton County denial of dismissed at petitioner's
1944 (court un- right to request (petitioner was
clear) appeal released on probation
in May, 1945)
2. November County Court sentenced denied without hearing;
3, 1960 (Queens) in absence affirmed by Appellate
of counsel Division, People v. Diblin,
13 A.D.2d 700, 215 N.Y.S.2d
739 (2d Dep't 1961); leave
to appeal to Court of
Appeals denied; certiorari
denied, 369 U.S. 803, 82
S. Ct. 643, 7 L. Ed. 2d 551
3. March U.S. District coerced con- denied for failure to exhaust
28, 1962 Court, fession and state remedies; certificate
N.D.N.Y. sentenced of probable cause denied
in absence by Court of Appeals;
of counsel certiorari denied, Diblin
v. La Vallee, 372 U.S.
980, 83 S. Ct. 1116, 10
L. Ed. 2d 145 (1963)
4. May Supreme Court coerced application denied after
27, 1965 (Queens) confession hearing solely on question
whether issue of
voluntariness raised at
affirmed by Appellate
Division, People v.
Diblin, 27 A.D.2d 989,
281 N.Y.S.2d 981 (2d
Dep't 1967); leave to appeal
to Court of Appeals denied
5. November Supreme Court sentenced application denied without
15, 1966 (Queens) in ab- prejudice because coram
sence of nobis not proper remedy
counsel and because of hearing
scheduled to be held
shortly on related
claim (see (6) below);
notice of appeal filed
on Feb. 27, 1967
6. January Supreme Court denial of application denied
27, 1967 (Queens) right to after hearing; aff'd,
appeal by 30 A.D.2d 1052, 295
being held N.Y.S.2d 411 (2d
incommuni- Dep't 1968); leave
cado to appeal to Court
of Appeals denied.
7. July Supreme Court failure of denied without hearing
12, 1967 (Queens) trial court on ground that trial
to inform court is under no such
petitioner duty if petitioner had
of right retained counsel
8. January U.S. District denial of denied for failure to
3, 1968 Court, right to exhaust state remedies
E.D.N.Y. appeal by bad (see (6) above;
advice and by appeal then pending);
being held certificate of probable
incommunicado cause denied [An
earlier letter from
the petitioner to
the clerk of this
Court, dated January
7, 1966, making
similar claims and
requesting forms was,
under the then
practice, not treated
as an application for
a writ of habeas
9. June U.S. District coerced present application
6, 1968 Court, confession
Petitioner is presently incarcerated in Green Haven State Prison, serving a term of eighteen to twenty years. He was sentenced on June 24, 1959, as a second felony offender by the Court of General Sessions, New York County, after pleading guilty to a charge of incest. See United States ex rel. Diblin v. Follette, 268 F. Supp. 674 (S.D.N.Y.1967). He seeks to invalidate a 1942 conviction for sodomy after a jury trial in County Court, Queens County, which formed the basis for the sentence he is now serving. See United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.), cert. denied, 377 U.S. 998, 84 S. Ct. 1921, 12 L. Ed. 2d 1048 (1964) (person sentenced as second offender may seek to invalidate first conviction).
At the 1942 trial petitioner was represented by counsel. No appeal was taken. The alleged infringement of constitutional rights raised in the present application involves a confession which purportedly was "obtained * * * by intimidation, coercement, inducement, and brutal physical force."
There is no transcript of the 1942 trial. Nevertheless, some idea of the evidence introduced may be obtained from the transcript of the grand jury proceedings and the trial clerk's minutes. From the former it appears almost certain that a full confession, in one or more written versions, was available. The latter indicates that petitioner's alleged young victim, the police officer who confronted petitioner with the victim, and a number of other witnesses testified on the prosecution's direct case; that petitioner testified as the sole witness on his own behalf; and that the police officer's partner and another boy whom petitioner had allegedly sexually molested, and before whom petitioner had made an oral confession, testified on rebuttal. With an available confession, obtained by mere confrontation in the way described in the grand jury minutes, it almost certainly was used by the prosecution at the trial. The petit jury conferred for less than forty minutes before finding petitioner guilty.
Prior to launching the present attack in this Court on the use of the confession to obtain the 1942 conviction, petitioner, as is indicated by the above chart, sought a writ of error coram nobis in the state courts on the same ground. Under New York law an evidentiary hearing on coercion is required only if the defendant had objected to the admission of the confession or the trial judge had charged the jury on voluntariness. People v. Huntley, 15 N.Y.2d 72, 77, 255 N.Y.S.2d 838, 843, 204 N.E.2d 179 (1965). Since there was no transcript of petitioner's 1942 trial, a hearing was held in Supreme Court, Queens County, to determine whether the voluntariness of petitioner's confession had been put in issue; the question of voluntariness itself was not tried.
The only two witnesses at this hearing were petitioner and his 1942 trial attorney. Petitioner testified that an objection had been made to the admission of his confession. His former attorney, who at the time of this hearing was eighty years old, had no independent recollection of the events. The court found that although a confession had been used, its voluntariness had not been put in issue. It held that petitioner was not entitled to a hearing on the merits of his claim. This decision was, as will be seen from the above chart, unanimously affirmed by the Appellate Division, People v. Diblin, 27 A.D.2d 989, 281 N.Y.S.2d 981 (2d Dep't 1967), and leave to appeal to the Court of Appeals was denied by a judge of that court. The record supports the narrow finding of the state trial court (as it would support a contrary finding); we assume, for present purposes, that the issue of coercion was not raised by objection or charge at the 1942 trial. 28 U.S.C. § 2254(d), (e).
Two legal issues are now raised. May we consider the coercion attack as petitioner requests? May we consider any other constitutional attacks not included in the present petition?
The question is whether a federal court is precluded from considering the merits of petitioner's coerced confession claim by petitioner's failure to raise the issue of voluntariness at his trial. Under the Supreme Court's decision in Fay v. Noia, 372 U.S. 391, 438-439, 83 S. Ct. 822, 849, 9 L. Ed. 2d 837 (1963), the answer depends upon whether petitioner "understandingly and knowingly" chose not to avail himself of "the orderly procedures of the state courts and in so doing has forfeited his state court remedies." See also Henry v. State of Mississippi, 379 U.S. 443, 452, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965) (dictum: adequate state procedural ground does not deprive federal court of habeas corpus jurisdiction); Jackson v. Denno, 378 U.S. 368, 370, n. 1, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). "A choice made by counsel not participated in by the petitioner does not automatically bar relief." Fay v. Noia, 372 U.S. at 439, 83 S. Ct. at 849. Compare McNeil v. State of North Carolina, 368 F.2d 313, 315 (4th Cir. 1966) ("nor should waiver be found in the absence of some affirmative conduct on the part of a defendant evidencing a deliberate and conscious rejection of a constitutional guarantee"); Labat v. Bennett, 365 F.2d 698, 709 (5th Cir. 1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1303, 18 L. Ed. 2d 334 (1967) (showing of considered choice required); Cunningham v. Heinze, 352 F.2d 1, 4, n. 2 (9th Cir. 1965), cert. denied, 383 U.S. 968, 86 S. Ct. 1274, 16 L. Ed. 2d 309 (1966); United States ex rel. Bruno v. Herold, 246 F. Supp. 363, 367-368 (N.D.N.Y.1965), rev'd on other grounds, 368 F.2d 187 (2d Cir. 1966) (per curiam) with Nelson v. People of State of California, 346 F.2d 73, 81 (9th Cir.), cert. denied, 382 U.S. 964, 86 S. Ct. 452, 15 L. Ed. 2d 367 (1965); United States ex rel. Schaedel v. Follette, 275 F. Supp. 548 (S.D.N.Y.1967); United States ex. rel. Moore v. Follette, 275 F. Supp. 416 (S.D.N.Y.1967). See also, e.g., Lay, Problems of Federal Habeas Corpus Involving State Prisoners, 45 F.R.D. 45, 55-56 (1968); Hill, The Inadequate State Ground, 65 Colum.L.Rev. 943, 997 (1965) (in Fay v. Noia, the Court purported "to abolish forfeitures altogether," but "is now beginning to draw back"); Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1373 (1961) ("waiver should be confined to knowledgeable before-the-fact choice on the part of defendants").
The issue of knowing waiver was not considered by the state courts nor can it be resolved solely upon the basis of the record of the state's evidentiary hearing. Cf. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 297, n. 3, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) (where claim denied on the merits in post-conviction hearing, waiver irrelevant). Moreover, pursuant to state law under Huntley, this issue of knowing waiver is apparently not a subject on which the state court will inquire (because the ...