The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
Petitioner, who is presently held in the House of Detention in Long Island City pursuant to a warrant issued for his arrest as a parole violator, seeks a writ of habeas corpus directing his release on grounds that there was no reasonable cause for the issuance of the warrant. The facts alleged - which we take as true in the absence of contradiction by the respondent - are as follows:
Petitioner was convicted in New York County of manslaughter in late 1964 or early 1965 and sentenced to two and one-half to five years in state prison. He was released from prison on March 16, 1967, and remained on parole without complaint of violation until November 25, 1969. On that date he received a telephone call from his parole officer, who requested that he come down to the office "to sign some papers." When he did so on the following day after work, he was locked up and has remained in custody ever since.
Petitioner's parole officer advised him that a telephoned complaint had been made against him, reporting that during a verbal altercation on the telephone on November 23 with the stepfather of his son Vincent, petitioner had threatened "to come over there and shoot him," or words to that effect. It appears that the resulting inference that petitioner possessed a gun (which, if true, would have constituted a violation of the conditions of his parole) served to supply the requisite "reasonable cause" for the warrant for petitioner's arrest and detention.
It also apparently served as the basis for warrantless searches of the apartments of petitioner's sister and fiancee. Petitioner denied that either he or anyone else in his family had a gun, and it does not appear that any weapon was in fact found.
Attempts by petitioner's attorney, Mr. William Fuller, to discover the basis for his client's detention, or indeed even to see petitioner in jail, have been severely hampered by the insistence of the parole authorities that since petitioner will not be entitled to be represented by counsel at his parole revocation hearing, Correction Law § 218,
there is no reason to allow a lawyer any access whatsoever either to petitioner or to any information about him. Mr. Fuller was finally allowed to visit petitioner, after pursuing his request well up the parole system's chain of command, but is still forced to rely on what little the parole authorities have told his client for information as to the alleged parole violation and the procedures followed by the parole authorities in arresting and jailing petitioner.
Petitioner does not contend that he is entitled to representation by counsel at the parole revocation hearing - which, after nearly two months, has still not been held.
Nor does he ask this court to hold such a revocation hearing in place of the parole board. His basic contention is simply that there was no reasonable cause to believe that he had violated the conditions of his parole in any important respect, Correction Law § 216,
that the warrant for his arrest and detention was therefore invalid, and in consequence that he is being unlawfully deprived of his liberty. The remedy he seeks, apart from his ultimate goal of release, is a hearing at which the facts surrounding the issuance of the warrant may be examined to see whether the parole authorities did have any substantial basis for the issuance of the warrant, or whether, as he contends, their action was arbitrary, capricious and without foundation in fact.
Petitioner has made no application to any court of the state of New York for the relief he seeks here. He nevertheless urges that he has met the exhaustion requirements of 28 U.S.C. § 2254. "If no remedy is available under state law at the time petitioner wants to raise his contention, then he need not exhaust. Fay v. Noia [372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)]. That is the allegation in the instant petition." It is petitioner's claim that the New York courts will take the same view of his right to counsel as the parole authorities and will, as his attorney puts it, "throw the statute [Correction Law § 218] right in my face and I won't get a hearing."
If we agreed with petitioner that the New York state courts would certainly refuse to entertain his claims, we might well accept his contention that there is no need for exhaustion of state remedies in his case. Our research, however, suggests not only that petitioner has an excellent chance of obtaining the hearing he seeks on the validity of the warrant for his arrest, but also that he might be successful in arguing more broadly that he is entitled to representation by counsel at any subsequent parole revocation hearing. Accordingly, we dismiss his petition for failure to meet the exhaustion requirements of 28 U.S.C. § 2254.
As Justice Chimera wrote in Menechino v. Division of Parole, 57 Misc. 2d 865, 293 N.Y.S. 2d 741 (Sup. Ct., Spec. T., N.Y. County, 1968), rev'd, 32 A.D. 2d 761, 301 N.Y.S. 2d 350 (2d Dept. 1969):
"The present dialogue and decisional trend throughout the land seems to suggest that at any stage of any proceeding involving a person's liberty, an 'accused' is entitled to a hearing as a matter of constitutional right; he must be afforded the same opportunity to defend himself and explain his actions as that afforded a defendant in a court action; that both the right to counsel and to meaningful advice with respect to such right are concomitants of such a hearing and perhaps the most important individuating notes of due process." (293 N.Y.S. 2d at 742)
New York has not yet gone so far in the case of post-conviction proceedings; it is, for example, settled that a prospective parolee has no constitutional right to be represented by counsel at a hearing before the prison board of parole. Briguglio v. New York State Board of Parole, 24 N.Y. 2d 21, 298 N.Y.S. 2d 704, 246 N.E. 2d 512 (1969). On the other hand, there is solid authority for the proposition that in a revocation of probation proceeding - where the sentence imposed by the trial court may be changed (Code Cr. Proc. § 935) - the alleged violator is entitled not only to counsel but to be informed of that right. People v. Hamilton, 26 A.D. 2d 134, 271 N.Y.S. 2d 694 (4th Dept. 1966); People v. Reynolds, 25 A.D. 2d 487, 266 N.Y.S. 2d 604 (4th Dept. 1966); People ex rel. Decker v. Martin, 57 Misc. 2d 57, 291 N.Y.S. 2d 408 (Sup. Ct., Onondaga County, 1968). On the question of the right to counsel at a parole revocation hearing the cases are divided, and the Court of Appeals has not yet settled the issue. The majority view is that there is no such right, and that the legislature made a permissible policy determination in providing, in § 218 of the Correction Law, that alleged parole violators shall be given "an opportunity to appear personally, but not through counsel or others" to explain the charges made against them. People ex rel. Johnson v. Follette, 58 Misc. 2d 474, 295 N.Y.S. 2d 565 (Sup. Ct., Dutchess County, 1968); Menechino v. Division of Parole, 32 A.D. 2d 761, 301 N.Y.S. 2d 350 (1st Dept. 1969), rev'g 57 Misc. 2d 865, 293 N.Y.S. 2d 741 (Sup. Ct., Spec. T., N.Y. County, 1968); People ex rel. Smith v. Deegan, 32 A.D. 2d 940, 303 N.Y.S. 2d 789 (2d Dept. 1969); People ex rel. Ochs v. LaVallee, 33 A.D. 2d 80, 307 N.Y.S. 2d 982 (3d Dept. 1969). See also People ex rel. Harris v. Mancusi, 32 A.D. 2d 873, 302 N.Y.S. 2d 1013 (4th Dept.) (mem.), motion for leave to appeal denied 25 N.Y. 2d 740, 304 N.Y.S. 2d 1029, 251 N.E. 2d 808 (1969); People ex rel. Rodriguez v. Mancusi, 32 A.D. 2d 874, 302 N.Y.S. 2d 1013 (4th Dept.) (mem.), motion for leave to appeal denied, 25 N.Y. 2d 740, 304 N.Y.S. 2d 1029, 251 N.E. 2d 808 (1969); and see two cases decided by the Sup. Ct. Spec. T. Westchester County: People ex rel. Jones v. Deegan, N.Y.L.J. 10/24/68, p. 19, col. 6; People ex rel. Trapense v. Deegan, not reported. Cf. Schwartzberg v. Oswald, 8 A.D. 2d 570, 183 N.Y.S. 2d 521 (3d Dept. 1959) (dictum).
In People ex rel. Combs v. LaVallee, 29 A.D. 2d 128, 286 N.Y.S. 2d 600, appeal dismissed,
22 N.Y. 2d 857, 293 N.Y.S. 2d 117, 239 N.E. 2d 743 (1968), however, the Appellate Division for the Fourth Department granted relief in a habeas corpus proceeding by an alleged parole violator, ordering the Board of Parole to hold a new revocation hearing at which the petitioner was to have the right to be represented by counsel. The court based its decision upon New York's decisional law and the state constitutional provisions pertaining to the right to counsel and the guarantee of due process. "When all the legal niceties are laid aside," wrote Justice Bastow,
"a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action and, it is submitted, falls within the due process provision of section 6 of Article 1 of our State constitution." (286 N.Y.S. 2d at 603.)
With the reversal of Menechino v. Division of Parole, 57 Misc. 2d 865, 293 N.Y.S. 2d 741 (Sup. Ct., Spec. T., N.Y. County, 1968), by the Appellate Division for the First Department, 32 A.D. 2d 761, 301 N.Y.S. 2d 350 (1969), there is only a dictum in a dissent by Chief Judge Fuld in People v. Simons,
22 N.Y. 2d 533, 293 N.Y.S. 2d 521, 240 N.E. 2d 22 (1968), to support the Combs view. Nevertheless, with the issue as yet undecided by the Court of Appeals, and given the generally ...