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November 23, 1971

UNITED STATES of America ex rel. Robert Paul NELSON, Petitioner,
John L. ZELKER, Warden, Greenhaven State Prison, Stormville, New York, Respondent

Croake, District Judge.

The opinion of the court was delivered by: CROAKE


CROAKE, District Judge.

 This is a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254, seeking relief from the use of an allegedly unconstitutional conviction for sentencing purposes in a later case. The subsequent conviction is not itself challenged.

 Petitioner is presently in respondent's custody in the state prison at Stormville, New York, pursuant to a conviction of the crime of manslaughter in the first degree, Penal Law of 1909 § 1050 [1909] N.Y. Sess. L. 1909, c. 88, see Penal Law § 500.05 (McKinney's Consol. Laws, c. 40, 1967); see also Penal Law § 125.00 et seq. (McKinney 1967), after a trial in the New York State Supreme Court, Bronx County, before Hon. Edward T. McCaffery, Justice, and a jury. At the time of sentence, on March 3, 1967 (six months before the effective date of the new Penal Law, Penal Law § 500.10 (McKinney 1967)), petitioner was presented with an information charging him under Penal Law of 1909 § 1943 with a November 9, 1956 robbery conviction in the United States District Court for the District of Columbia (Criminal Docket No. 820-56). Petitioner pled guilty to that information, thereby admitting the existence of the prior conviction, and was sentenced to from seven and a half to eight years' imprisonment.

 Later on the same day, the Court ordered the petitioner brought before it, and noted that the Court had been made aware after the original sentence that New York's recidivist statute, Penal Law of 1909 § 1941(1), mandated a ten year minimum for second felony offenders convicted of manslaughter, first degree (transcription of allocution at sentence, at p. 7 ("record")); but see Penal Law, § 70.00 et seq. (McKinney 1967). Petitioner was thereupon "rearraigned" and resentenced to not less than ten nor more than eleven years in prison. The New York State judgment of conviction does not appear to have been appealed; this hardly means, however, that petitioner has failed to assert what he considers to be his rights.

 The District of Columbia judgment of conviction was filed on November 9, 1956. Petitioner moved for reduction of sentence on February 6, 1957; the motion was denied on February 13, 1957, with the comment that petitioner was entitled to no relief. On March 9 petitioner moved, pro se, under 28 U.S.C. § 2255 for vacatur of sentence; this motion, the grounds of which are not apparent, was denied on March 12, 1957, with another certification that the petitioner was entitled to no relief. Accordingly, petitioner's pro se application for leave to appeal, made on March 21, 1957, was denied on March 25. Petitioner does not appear to have made any other motions or applications while incarcerated in the District of Columbia. *fn1"

 Petitioner first sought to attack the use of the prior conviction for New York sentencing purposes by companion writs of error coram nobis, one filed on November 19, 1969, in the New York State Supreme Court, Bronx County, and one in the District Court for the District of Columbia on November 20 of that year. The New York petition was denied by a memorandum dated December 17, 1969; *fn2" the denial was affirmed without opinion by the Appellate Division, People v. Nelson, 35 A.D. 2d 690, 314 N.Y.S. 2d 699 (1st Dept. 1970). The District of Columbia writ was denied by order dated December 23, 1969, and filed January 5, 1970. No appeal appears to have been taken.

 Rather, the present petition was then filed with the pro se clerk's office of this Court on December 21, 1970. The answer and traverse were subsequently received in that office, and the entire file was referred to the undersigned on February 5, 1971. By letter dated March 8, 1971, the Court informed the parties that the complexity and significance of the procedural and substantive issues involved warranted appointment of counsel, and assigned present counsel on its own motion, by coincidence one day before petitioner moved for such an assignment.

 Counsel sought and obtained time to verify the facts of the case and to gather evidence to rebut respondent's argument, in answer to the original petition in this Court, that insufficient proof had been submitted concerning the circumstances of the prior conviction to satisfy petitioner's burden under 28 U.S.C. § 2254 (d) and (e). Counsel eventually filed a memorandum of law on September 24, 1971, with exhibits attached, to which respondent replied on October 6, 1971. Meanwhile, petitioner sent the Court a total of eight letters containing various comments on the actions and arguments of both counsel.


 The issues presented by this petition fall into three general categories: procedural questions, the double jeopardy question, and the question of infringement of the right of counsel in the District of Columbia.


 Petitioner faces two distinct procedural obstacles at this juncture: he must show that he has exhausted available state remedies, and at the same time avoid the implications of a prior decision on the merits. He apparently does this by arguing that the issue of right to counsel was never raised in the District of Columbia, either at trial or in one of the three post-trial motions, while at the same time arguing that the issue was raised and pursued in New York. With regard to the first half of the argument, the record as it now stands, despite the vigorous effort of counsel as well as this Court, does not permit any determination of what issues were raised by the District of Columbia motions. The right to counsel cannot, therefore, be said to be res judicata because no determination adverse to petitioner can be identified among the proceedings in the District of Columbia.

 With regard to exhaustion of state remedies, the rule is clear that when a state utilizes a sister state's, or the District of Columbia's, conviction for its own sentencing purposes, it necessarily assumes the burden of defending the validity of the foreign conviction. United States ex rel. LaNear v. LaVallee, 306 F.2d 417, 419 (2d Cir. 1962); United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir. en banc 1964), cert. denied, 377 U.S. 998, 84 S. Ct. 1921, 12 L. Ed. 2d 1048 (1964). Consequently, this petition does not and need not allege that there remains no avenue of attack in the District of Columbia upon the constitutionality of its conviction.

 In recognition of petitioner's rights in this regard, the New York State Legislature provided in 1964 that defendants charged with being second offenders be explicitly notified of their right to challenge the constitutionality of the prior conviction. [1964] N.Y. Sess. L. 446. Petitioner has attempted to avail himself of this right, by means of the proper writ. People v. Machado, 17 N.Y. 2d 440, 266 N.Y.S. 2d 525, 213 N.E. 2d 804, cert. denied, 383 U.S. 921, 86 S. Ct. 923, 15 L. Ed. 2d 676 (1966), but see N.Y.C.P.L. § 440.20 (McKinney's Consol. Laws, c. 11-A, 1971), and his petition has been denied. On appeal, the denial was affirmed. While, as has been noted, petitioner's New York State conviction has apparently not been appealed, *fn3" this is immaterial for present purposes. The present substantive issues were eventually ...

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