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October 6, 1971

UNITED STATES of America ex rel. Milton ELLINGTON, Petitioner,
J.P. CONBOY, Superintendent, Great Meadow Correctional Facility, Comstock, New York, Respondent

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This is a petition pro se by a State prisoner for a writ of habeas corpus. Petitioner was convicted of second degree robbery by the New York State Supreme Court and on October 22, 1969 was sentenced to an indeterminate term of imprisonment not to exceed seven years. Assigned counsel handled the appeal to the Appellate Division which affirmed the conviction on February 18, 1971, 318 N.Y.S. 2d 668.

 Petitioner contends that counsel did not cooperate with him in the preparation of the appeal, that she failed to supply him with a copy of the trial record, that she did not abide by her alleged agreement to consult with him before submitting the brief and that the brief itself was inadequate. Petitioner had received a copy of the brief on October 8, 1970.

 After the affirmance by the Appellate Division on February 18, 1971 petitioner wrote a letter dated February 22, 1971 to that court setting forth his dissatisfaction with counsel's performance on the brief. In the letter petitioner moved for permission to file a supplemental brief, to reargue the appeal and to be assigned new counsel. It is not clear that petitioner knew that his conviction had already been affirmed. The motion was set down to be argued on March 9, 1971. On March 11, 1971 petitioner submitted a motion for a free transcript to be used in prosecuting his appeal and in pursuit of collateral relief.

 The motion for reargument was denied by order of the Appellate Division on March 18, 1971. The Clerk of the Appellate Division informed petitioner by letter of the same date that petitioner's motion to dismiss assigned counsel was unnecessary because the Appellate Division's order affirming the conviction automatically terminated assignment of counsel. Additionally, the Clerk noted that because the Appellate Division had denied petitioner's motion for reargument, the Appellate Division had no power to direct that petitioner be furnished with a transcript of the trial record.

 A subsequent letter dated April 5, 1971 from the Clerk of the Appellate Division informed petitioner that his remedies in that Court had been exhausted.

 Application for leave to appeal from the Appellate Division's affirmance was made to the New York Court of Appeals by petitioner's same assigned counsel despite his efforts to dismiss her and despite the statement of the Appellate Division Clerk that her assignment had been automatically terminated. On March 25, 1971 Chief Judge Fuld denied leave to appeal. Petitioner has not sought relief in the State Courts by writ of error coram nobis or in any collateral proceeding. A petition to the Supreme Court for a writ of certiorari was not filed. Petitioner's communications with the Appellate Division constitute the whole of his efforts in the State Courts to raise the issues of counsel's incompetence and petitioner's right to a free transcript. Petitioner now brings a petition for a writ of habeas corpus.

 In this petition he contends (1) that he was not warned of his rights before he gave an inculpatory statement and that the statement was erroneously admitted at his trial, claiming that Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) applied to him because, even if he was not in custody, he was a known suspect; (2) that the eye-witness identification of himself was constitutionally improper under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); (3) that denying him a free transcript of his trial violated his constitutional rights; and (4) that his assigned counsel argued his Miranda point in the Appellate Division in an inadequate manner and failed to raise the Wade problem as a constitutional issue.


 28 U.S.C. § 2254(b) requires that an application for a writ of habeas corpus shall not be granted "unless it appears that the applicant has exhausted the remedies available in the courts of the State. * * *" Subsection (c) of § 2254 provides that there is no exhaustion of remedies if the applicant "has the right under the law of the State to raise, by any available procedure, the question presented."

 To exhaust his remedies in the State Courts petitioner need only raise the issue and pursue it to a conclusion in the highest State Court either by appeal from the conviction or from denial of collateral relief. There is no need to petition the United States Supreme Court for a writ of certiorari. Fay v. Noia, 372 U.S. 391, 435-438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

 The issues presented by this petition and their status with respect to exhaustion of State remedies are as follows:

 1. The Miranda claim was raised at a People v. Huntley, 15 N.Y. 2d 72, 255 N.Y.S. 2d 838, 204 N.E. 2d 179 (1965) hearing and decided against the petitioner. The issue was raised again on appeal to the Appellate Division. The issue was presented to the Court of Appeals by way of the petitioner's Appellate Division brief which went to the Court of Appeals as part of assigned counsel's application for leave to appeal. Having gone to the highest State Court on this issue, the petitioner has exhausted his State remedies. The issue is properly before the Federal Court.

 2. The Wade claim was raised at an identification hearing in the New York Supreme Court and decided against the petitioner. His counsel in her brief to the Appellate Division failed to raise the out-of-court identification as a constitutional issue under Wade, although she did argue that the identification was too weak to support a conviction beyond a reasonable doubt. Although the petitioner did fail to exhaust his State remedy by direct appeal this failure was, he contends, the fault of his "inadequate" counsel. The requirement of exhaustion of remedies is based upon the belief that the State Courts should have an opportunity to pass upon Federal constitutional questions before Federal District ...

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