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May 26, 1971

UNITED STATES of America ex rel. Joseph Michael DUNHAM, Petitioner,
Lawrence M. QUINLAN, Sheriff, Dutchess County, Respondent

Edelstein, District Judge.

The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

Joseph Michael Dunham, the petitioner, was convicted after a jury trial in the County Court of New York, Dutchess County, of robbery in the first degree, burglary in the second degree, and possession of a dangerous weapon. Petitioner now is in prison serving the concurrent sentences imposed by the County Court for these crimes. *fn1" His petition for a writ of habeas corpus is founded on the claim that his apartment was searched unlawfully without a warrant in violation of the Fourth Amendment and that evidence seized during this search, a gun, was admitted into evidence against him at his trial. At the outset, the issue raised by this petition, however, is whether or not the petitioner has exhausted his state remedies with respect to this federal constitutional claim.

 The parties disagree on this issue. Respondent alleges that petitioner has not exhausted his state remedies, whereas petitioner alleges that he had raised his search and seizure claim on direct appeal in the state courts. To find the facts in connection with this dispute the court undertook to obtain the state court records relating to petitioner's case. It was discovered that the records were with the Appellate Division of the New York Supreme Court for the Second Judicial Department in connection with an appeal pending before that court. The records were furnished directly to this court by the Clerk of the Appellate Division shortly after the Appellate Division rendered its decision on that appeal.

 The records obtained from the Appellate Division included all of the records on file with the office of the Dutchess County Clerk and with the Appellate Division, the transcript of petitioner's trial in the Dutchess County Court, the transcript of a suppression hearing held in the Dutchess County Court, and the briefs filed in connection with petitioner's direct appeal and in connection with his appeal from the Dutchess County Court's denial of a petition for a writ of error coram nobis. These materials reveal the following:

 On October 22, 1968, Judge Jiudice of the Dutchess County Court, upon the application of the petitioner, ordered the prosecution to show cause why an order should not be entered suppressing as evidence against the petitioner various items allegedly seized as a result of an illegal search and seizure. This matter came on for a hearing in the County Court on October 23, 1968, and a full hearing then was held in connection with the alleged unlawful search and seizure and also in connection with confessions made by petitioner which he also moved to suppress. At the conclusion of the hearing Judge Jiudice made findings of fact and conclusions of law denying petitioner's motion to suppress in all respects. Petitioner's trial commenced the next day and ended in his conviction on October 30, 1968, on five of the seven counts charged in the indictment. Petitioner was sentenced on January 21, 1969. Thereafter, on February 17, 1969, petitioner and his assigned trial counsel filed separate notices of appeal from the judgment of conviction. The appeal itself was prosecuted by an attorney assigned by the Appellate Division, Second Department. On April 27, 1970, the Appellate Division unanimously affirmed petitioner's conviction without filing an opinion. People v. Dunham, 34 A.D. 2d 735, 311 N.Y.S. 2d 276 (2d Dept. 1970). Subsequently, on June 12, 1970, petitioner's pro se application for leave to appeal to the Court of Appeals was denied by the Appellate Division.

 While this appeal from his conviction still was pending, petitioner made various pro se applications to the County Court. He made several motions for a new trial based on newly discovered evidence. All of these motions were denied. Petitioner filed a notice of appeal dated January 6, 1970, from one of these denials, but this appeal apparently was not prosecuted. A petition for a writ of error coram nobis also was directed to the County Court. This was denied on September 19, 1969, and petitioner filed a notice of appeal from this decision. This appeal also apparently was not pressed. Finally petitioner made several applications to the County Court asking that he be provided free of charge with a copy of the records of his case. These applications also were unsuccessful. One motion for a copy of the judgment roll was denied by the County Court on March 19, 1970. Petitioner filed a notice of appeal from this decision too, but once again, apparently, did not pursue his appeal. Although his attempts to obtain a copy of his records failed, petitioner was permitted by the Appellate Division to prosecute his appeal from his conviction on the original papers and by typewritten briefs, and his assigned counsel was provided with the necessary records without charge.

 None of the pro se applications made by petitioner to the County Court while the appeal from his conviction was pending raised the issue of the legality of the search and seizure complained of here. Nor was the issue raised in the brief submitted by petitioner's counsel to the Appellate Division. That brief only raised issues concerning the propriety of the remarks made by the prosecutor to the jury in his opening and closing statements at the trial.

 Petitioner's claim that he has exhausted his state remedies rests on the allegation that he raised the search and seizure question in a pro se supplemental brief dated December 24, 1969, filed with the Appellate Division in support of the appeal from his conviction. This brief was not on file in the Appellate Division with the other briefs submitted in connection with this appeal. This court did find attached to the briefs in the Appellate Division's file an affidavit dated September 30, 1969, submitted by the petitioner. This affidavit related facts pertaining to petitioner's case, but it did not make the claim that the petitioner had been the subject of an unlawful search and seizure.

 It was noted previously that petitioner had applied pro se to the Appellate Division after its affirmance of his conviction for leave to appeal to the Court of Appeals. A copy of the December 24, 1969, pro se supplemental brief relied upon here by the petitioner as the basis for his claim of exhaustion is attached to this Appellate Division application as an exhibit. The pro se supplemental brief does raise inter alia the search and seizure issue. This particular copy of the brief, though, could not have been before the Appellate Division when it was considering petitioner's appeal because this copy is attached as an exhibit to an application made after the Appellate Division affirmed his conviction on April 27, 1970. The question, then, is whether any copy of the supplemental brief had been before the Court when it was considering petitioner's appeal. The Appellate Division's file gives no indication that such was the case.

 Other exhibits attached to petitioner's application for leave to appeal to the Court of Appeals possibly suggest an affirmative answer. First, there is a letter dated January 9, 1970, from the Clerk of the Appellate Division to petitioner acknowledging receipt of his supplemental brief but stating that it was necessary for the petitioner to serve a copy of the brief on the District Attorney of Dutchess County and another copy on his assigned counsel before the brief would be submitted to the Court. Second, there is a letter dated March 24, 1970, and marked received by the Appellate Division on March 30, 1970, from the petitioner to the Clerk. In this letter petitioner states that he had sent a copy of his supplemental brief to the District Attorney on the same day he had mailed the brief to the Court. Finally, there is a letter dated December 29, 1969, from petitioner to his assigned counsel advising the latter that petitioner had filed a supplemental brief with the Appellate Division.

 However, these exhibits may prove too much when they are viewed in light of the substance of the application for leave to appeal to the Court of Appeals to which they are appended. Much of this application focuses on the petitioner's submission of the supplemental brief. Petitioner suggests that without a consideration of the issues raised by this brief he could not be given a "full and complete appeal." Indeed, the thrust of his argument that he should be given leave to appeal to the Court of Appeals is that further review is necessary because the important issues raised by his supplemental brief had not been considered by the Appellate Division. Implicit in this argument is that petitioner's supplemental brief had not been presented to the Appellate Division. And, in fact, as stated previously, this court failed to find the supplemental brief in the file with the other briefs submitted to the Appellate Division.

 Some months after the determination of his appeal from his conviction, on August 11, 1970, petitioner again applied to the Dutchess County Court for a writ of error coram nobis setting aside his conviction. Petitioner was represented by counsel in this matter. Among the grounds urged in support of this application was the illegality of the search of petitioner's apartment. In a reply affidavit filed by petitioner himself on September 15, 1970, in support of this coram nobis application, petitioner stated, when referring to his direct appeal from his conviction, that "Although the Appellate Division did rule upon the original trial of your deponent, it did not have before it the questions of the Huntley hearing, the suppression, [and] the alleged confessions. * * *" (emphasis added) This sworn admission is further evidence that petitioner had failed to present to the Appellate Division on his direct appeal the issue he attempts now to raise in this forum.

 Before leaving this review of the state court records, however, further attention must be directed to petitioner's August 11, 1970, coram nobis application. Though not relied upon by petitioner as support for his claim of exhaustion, this application raised, among other issues, the lawfulness of the search of petitioner's apartment and the seizure of the gun. This application was pending before the County Court when this petition for a writ of habeas corpus was filed in this court. Since then, on October 15, 1970, the County Court denied the application without a hearing, saying as to the search and seizure issue that since the suppression hearing was a part of the record the issue must be determined on appeal and not on a coram nobis application. This decision was affirmed by the Appellate Division, Second Department, on April 19, 1971, without an opinion. There is no evidence that petitioner has applied for leave to appeal this decision to the Court of Appeals.

 Petitioner was represented on this coram nobis application before the Appellate Division by assigned counsel. The lone issue raised in the briefs on appeal was the propriety of the County Court's denial of the coram nobis application without first having granted a hearing. In fact, the issue presented by petitioner's brief was even narrower since it argued only that the presentation made to the County Court had been sufficient to warrant a hearing on whether ...

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