The opinion of the court was delivered by: JUDD
This habeas corpus proceeding seeks to establish petitioners' right to bail pending a determination of parole violations. Hearings on the parole violations await the trial of state criminal charges.
The petitioners were declared delinquent because of new arrests while on parole from state sentences. Petitioner Napoli was serving a four-year term for robbery in the third degree and was re-arrested on February 22, 1974 for burglary. Petitioner Teitelbaum was serving a sentence for robbery in the first and second degrees as a second offender and was re-arrested in January 1974 for grand larceny, extortion and conspiracy.
Bail was fixed at $20,000 for Napoli and $5,000 for Teitelbaum, but their tender of bail was refused because of parole violation warrants lodged against them.
Both petitioners were granted preliminary hearings on the parole violation charges, and the hearing commissioner found probable cause to believe that each had violated the conditions of his parole.
On their application to the Parole Board to lift the warrants so that they could be released on bail, an employee of the Parole Board wrote them:
It is the policy of the Board of Parole to enforce a warrant and keep it in effect until all local charges pending against the violator have been disposed of in full by the courts . . . In view of the circumstances, you may want to appeal to the District Attorney and the court to expedite prosecution of your case.
A previous application to this court for habeas corpus relief was denied for failure to show exhaustion of state remedies. Memorandum and Order of May 20, 1974, 74-C-728. Subsequent applications to the state court for release on bail were denied, first because petitioners had not exhausted their remedies under Section 218 of the New York Correction Law, McKinney's Consol.Laws, c. 47, and second because the court held that pro se motions would not be accepted from petitioners who were represented by counsel.
Respondents assert that there has still been no exhaustion of state remedies. However, petitioners' access to the state courts is impeded by the New York court's ruling that pro se applications will not be entertained if the petitioner is represented in other matters by an attorney who has refused or failed to proceed. People v. Richardson, 4 N.Y.2d 224, 173 N.Y.S.2d 587, 149 N.E.2d 875, cert. denied, 357 U.S. 943, 78 S. Ct. 1395, 2 L. Ed. 2d 1557 (1958). In this circuit it has been held that a federal court cannot require a state court to accept pro se applications. Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973), cert. denied, 414 U.S. 1135, 94 S. Ct. 879, 38 L. Ed. 2d 761 (1974). It does not follow that a federal court should deny relief because an attorney has not come to the petitioner's aid or has disagreed with his client about his right to freedom. The Richardson case related only to the right of a trial court to require that summation be made by the attorney and not by the defendant in person. Whethor not it was correctly applied by the state court here, the refusal to consider petitioners' pro se applications constitutes "circumstances rendering [state] process ineffective to protect the rights of the prisoner." Therefore, the requirements of 28 U.S.C. § 2254(b) have been met, and the application should be entertained.
The New York Correction Law, McKinney's Consol.Laws, c. 47, requires (§ 212(7)) that the Board of Parole act upon charges "within a reasonable time." Section 218, which the state court cited, was repealed in 1970. L.1970, c. 476.
The denial of petitioners' right to pro se access to the court was particularly prejudicial here, because the court on proper application might well have vacated the parole violation warrant if a prompt hearing was not accorded them. People ex rel. Cordero v. ...