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November 26, 1973

UNITED STATES of America ex rel. James HORELICK, Petitioner-Relator,
The CRIMINAL COURT OF the CITY OF NEW YORK et al., Respondents

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

James Horelick petitions for habeas corpus relief from a conviction for two counts of criminal trespass and one count of resisting arrest. He was sentenced on June 18, 1970, to pay a fine of $250 or serve thirty days in jail on the first criminal trespass count and the resisting arrest count and to an additional $250 or thirty days for the second criminal trespass count. Horelick was ordered to surrender on February 28, 1973, but surrender was stayed by this court on February 27th.

 Horelick's conviction results from incidents which occurred during the controversial strike of public school teachers in 1968. The strike, opposed by some teachers and favored by others, was subsequently held to be illegal. On October 16, 1968, the Board of Education voted that the schools were to remain open if even one teacher reported to work, and John Doar, then President of the Board, made a statement to that effect. District superintendents were authorized to designate teachers in charge empowered to open closed schools.

 The following day a group of teachers, including the designated teacher in charge and Horelick, went to Washington Irving High School, where they were assigned to teach, an presented the teacher in charge's letter of authorization from the district superintendent to the school custodian. *fn1" When the latter refused to open the school, *fn2" Horelick nevertheless entered the building through a window with the intention of opening the doors himself. Inside the building, Horelick was stopped by the custodian, who called for the police who placed Horelick under arrest. After an altercation between Horelick and the officers, he was charged with criminal trespass and resisting arrest. Two days later, on October 19th, Horelick returned to the school. He was again asked to leave by the custodian, and, after refusing, was placed under arrest.

 On October 20th, the Board of Education issued directives clarifying the procedures to be used by teachers in charge in opening schools kept closed by their custodians, which indicated that it did not authorize a teacher to open a school in the absence of the school custodian. *fn3" People's Exhibit 1 at trial, Petition for Writ of Certiorari, p. 18a.

 Subsequent to his arrest, Horelick brought a civil rights action in this court for an injunction against his prosecution and for damages. The complaint was dismissed and dismissal was affirmed by the Court of Appeals. Adickes v. Leary, 436 F.2d 540 (2d Cir.), cert. denied sub nom. Adickes v. Murphy, 404 U.S. 862, 92 S. Ct. 66, 30 L. Ed. 2d 106 (1971). Simultaneously, Horelick sought to remove the prosecution to this court. However, the case was remanded to the state court and remand was affirmed by the Court of Appeals. People v. Horelick, 424 F.2d 697 (2d Cir.), cert. denied sub nom. Horelick v. New York, 398 U.S. 939, 90 S. Ct. 1839, 26 L. Ed. 2d 273 (1970). As discussed above, after trial in the state court, Horelick was convicted of criminal trespass and resisting arrest in June, 1970. The conviction was affirmed by the Appellate Division in November, 1971. In June, 1972, by a four to three vote, the New York Court of Appeals affirmed the lower court rulings. People v. Horelick, 30 N.Y. 2d 453, 334 N.Y.S. 2d 623, 285 N.E. 2d 864. Chief Judge Fuld and Judges Bergan and Gibson dissented in an opinion written by Judge Bergan. Id. at 458, 334 N.Y.S. 2d 623, 285 N.E. 2d 864. Horelick sought reargument, but his motion was denied. 31 N.Y. 2d 709, 337 N.Y.S. 2d 1029, 289 N.E. 2d 569.

 The United States Supreme Court denied certiorari in February, 1973 (410 U.S. 943, 93 S. Ct. 1372, 35 L. Ed. 2d 610), and, as noted above, Horelick was then ordered to surrender.

 Horelick seeks habeas corpus relief on several grounds. First, he claims that the New York Court of Appeals in affirming his conviction so changed the nature of the crime with which he was charged as to deprive him of notice of the charges against him and an opportunity to defend against them in violation of the due process clause of the Fourteenth Amendment. Corollaries to this argument are Horelick's contentions that the change in the law of criminal trespass effectuated by the Court of Appeals' decision constituted ex post facto law-making and that, as interpreted, the criminal trespass provision is unconstitutionally vague and overbroad. Horelick further contends that to convict him for activities which he reasonably believed were authorized by the Board of Education is a form of governmental entrapment forbidden by the due process clause.

 Respondents oppose Horelick's petition on the merits, but they also argue that habeas relief is precluded by the following procedural defects in the petition: 1) Horelick is not in custody as required by 28 U.S. §§ 2241(c) and 2254(a); 2) he has not exhausted his state remedies or has by-passed an available appellate procedure in violation of 28 U.S.C. § 2254(b); and 3) the issues presented here have already been decided adversely to Horelick in the prior federal litigation, so that he is barred by 28 U.S.C. § 2244(b) from raising them again.

 The first question presented by respondents, whether Horelick is "in custody" although he has not yet surrendered to serve his jail term, has been answered adversely to their position by a decision of the Supreme Court handed down since the papers on this motion were submitted. In Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973), the court held that a petitioner who was released on his own recognizance pending appeal from his conviction and pending adjudication of his habeas corpus petition was in custody within the meaning of the federal habeas corpus statute. The situation there is indistinguishable from the one before us. *fn4"

 Respondents' argument that Horelick failed to exhaust his remedies is equally without merit. Respondents claim that because the Court of Appeals of New York did not decide on direct appeal the issues presented here, although those issues were squarely raised on the motion to reargue, Horelick is obliged to seek collateral relief from the state courts before federal jurisdiction will lie. This is not the law. The fact that the state courts had the opportunity to deal with a petitioner's constitutional claims eliminates the requirement of further exhaustion. United States ex rel. Williams v. Zelker, 445 F.2d 451 (2d Cir. 1971) appears to us to be directly on point. See also Roberts v. LaVallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953).

 Furthermore, it is well established that exhaustion is not required where it "will almost certainly be futile." United States ex rel. Hughes v. McMann, 405 F.2d 773, 775-776 (2d Cir. 1968). A collateral attack here would entail requesting the lower courts of the state to find the conduct of its highest court constitutionally defective, an endeavor that would surely be as unrewarding as time-consuming.

 Respondents argue further that Horelick by-passed an available appellate route by failing to appeal to the Supreme Court, petitioning instead for a writ of certiorari. They contend that if in fact Horelick exhausted his state remedies by presenting the Court of Appeals on reargument with the issue whether its construction of the statute rendered it unconstitutionally vague and overbroad, then the Court of Appeals' denial of the motion to reargue in effect upheld a state statute against federal constitutional attack giving Horelick a ground to appeal as of right to the Supreme Court. If so, the argument runs, by opting for the discretionary certiorari route, Horelick has deliberately by-passed an available appellate procedure barring his present habeas petition.

 This approach is seriously flawed. It is unlikely that the correct route to the Supreme Court in Horelick's case was by appeal. The argument that the statute as interpreted is unconstitutional for vagueness and overbreadth, on which the right of appeal is predicated, is really secondary to the questions which predominated in the petition for a writ of certiorari and which are at the heart of the petition for habeas corpus relief. The crux of petitioner's argument is and has always been that the state proceedings deprived him of due process because the state denied him fair notice of the charges against him, subjected him to an ex post facto law and entrapped him. These issues are a proper subject for certiorari, but are not a ground for appeal. 28 U.S.C. § 1257. At the very least, it is safe to conclude that Horelick's failure to take an appeal under the circumstances did not constitute a deliberate by-pass barring relief in this court, especially since there was nothing for Horelick to gain by yielding an appeal of right.

 Finally, respondents' claim that habeas corpus relief in this court is barred by 28 U.S.C. § 2244(b), because of the federal litigation which preceded Horelick's trial in state court, is patently frivolous. Respondents' concede, as they must, that the principles of res judicata and collateral estoppel do not apply to habeas corpus petitions. Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). Accordingly, respondents rely on § 2244.

 Both the letter and the spirit of that section render it inapplicable. Section 2244(b) on its face only covers successive applications for the same relief, habeas corpus. *fn5" Therefore, by its own terms, it cannot preclude the petition before us, which is Horelick's first request for habeas corpus relief. As discussed above, the earlier federal litigation was brought by Horelick under the Civil Rights Act prior to his trial and therefore obviously before he was "in custody pursuant to the judgment of a State court."

 Furthermore, as the Sanders Court stated, "§ 2244 is addressed only to the problem of successive applications based on grounds previously heard and decided." *fn6" 373 U.S. at 12, 83 S. Ct. at 1075. We cannot conceive how issues which arise from a decision by the state's highest appellate court could have been "heard and decided" before any state court, much less the highest court, had rendered a decision. *fn7"

 We turn finally to the merits. Horelick's contention is that the New York Court of Appeals could not affirm his conviction for criminal trespass because the conduct proven at trial did not constitute trespass. Accordingly, in order to sustain his conviction, Horelick argues, the Court of Appeals was obliged to transform the law of trespass by importing into it a foreign element borrowed from the offense of forcible entry and detainer. Horelick's argument is two-fold: 1) The proof adduced supported neither the charge of trespass nor the uncharged crime of forcible entry and detainer; 2) the New York Court of Appeals' affirmance of his conviction on a combination of the two, even assuming that the latter had been proven, deprived him of due process of law by denying him fair notice of the charge against him and by subjecting him to ex post facto judicial legislation.

 Since Horelick's position relies entirely on his interpretation of the New York state law of trespass and forcible entry and detainer, analysis of applicable state law is indispensable to a determination of the merits of his constitutional claims. Horelick was charged with two counts of criminal trespass in the second degree. The ...

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