Appellants sought habeas corpus relief alleging three specific claims that § 172(b) of the New York Family Court Act is unconstitutional, one of the claims being that the statute is void for vagueness. The court below, United States District Court for the Southern District of New York, Frankel, J., dismissed the petition on the ground that as to the three claims appellants had not first exhausted their available state remedies. Appellants seek reversal of the order dismissing on that ground the void for vagueness claim. Appellants are upheld insofar as they maintain this issue is ripe for federal court adjudication, but the court below is directed to dismiss the claim on its merits.
Waterman and Mulligan, Circuit Judges, and Bryan, District Judge.*fn* Bryan, District Judge, concurring in the result.
This is an appeal from an order of the United States District Court for the Southern District of New York dismissing appellants' complaint for failure to exhaust available state remedies. The opinion of Judge Frankel below is reported at 363 F. Supp. 489 (1973). Appellants seek to have the order below reversed and the case remanded to the district court with instructions to proceed to a consideration of the merits of their claim that § 712(b) of the New York Family Court Act is unconstitutional on the ground that it is void for vagueness. As will appear from our discussion of the issue in this opinion, we consider the merits of this claim to have been settled by the United States Supreme Court in In re Tomasita Negron, cited as In re Negron, 409 U.S. 1052, 93 S. Ct. 572, 34 L. Ed. 2d 507 (1972), and although we realize that the district court did not entertain the issue on the merits on the ground that plaintiffs had not exhausted available state remedies, we direct that it be dismissed as presenting a claim upon which relief cannot be granted.
The petitioners-appellants are three minor children who, after having been adjudged Persons in Need of Supervision (PINS) pursuant to the New York Family Court Act § 712(b), were confined to state youth detention centers and training schools for varying lengths of time. Claiming unconstitutionally obtained deprivation of freedom, the appellants did not appeal their adjudications as PINS but commenced an action in the United States District Court for the Southern District of New York, described in the complaint as being "a civil action authorized by Title 42 U.S.C. § 1983 and Title 28 U.S.C. § 2241 to redress the deprivation under color of state law of rights, privileges, and immunities guaranteed to plaintiffs by the Fourteenth and Eighth Amendments to the Constitution of the United States. " Initially, plaintiffs in their one complaint combined a civil rights suit brought under 42 U.S.C. § 1983 and an application for a writ of habeas corpus brought under 28 U.S.C. § 2241. Subsequent to the inception of the action, however, the United States Supreme Court decided Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), in which the Court foreclosed the use of 42 U.S.C. § 1983 suits as vehicles for circumventing the requirement that a state prisoner must exhaust all available state remedies before petitioning a federal court for the issuance of a writ of habeas corpus. The Court held:
What is involved here is the extent to which § 1983 is a permissible alternative to the traditional remedy of habeas corpus. Upon that question, we hold today that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Accordingly, we reverse the judgment before us. Id. at 500.
The appellants, whether under actual state-imposed physical confinement or on parole, were unquestionably "in custody " for the purpose of ascertaining whether federal habeas corpus relief was available to them. See id. at 486 n. 7. Inasmuch as they were seeking release from that custody, and not merely challenging the conditions of that custody, appellants wisely concluded that, under Preiser, their exclusive remedy resided in the second half of their bifurcated complaint which thereupon became solely a petition for the issuance of a writ of habeas corpus, and the case was conducted as such below. See 363 F. Supp. at 490, n.1.
Turning now to that petition, we find that appellants challenged the constitutionality of § 712(b) on three independent grounds. These grounds were as follows: (1) that the statute is vague and overbroad in violation of the due process clause of the Fourteenth Amendment; (2) that the statute violates the Eighth Amendment because it punishes a status instead of punishing specific anti-social overt acts; and (3) that the statute violates the right to substantive due process guaranteed by the Fourteenth Amendment by imposing an excessive restraint on individual liberty without serving any legitimate state purpose.
The appellees moved to dismiss the complaint for lack of federal court jurisdiction and for failure to state a claim upon which relief could be granted. They argued first that the U.S. Supreme Court's summary dismissal for want of a substantial federal question of the appeal in In re Negron, supra, which was an appeal taken from the decision of the New York Court of Appeals in Matter of Tomasita N., 30 N.Y.2d 927, 335 N.Y.S.2d 683, 287 N.E.2d 377 (1972), defused all, or substantially all, of the appellants' contentions. Appellees maintained that, inasmuch as appellants' identical claims were presented to the Supreme Court by Negron after those claims had been properly raised in the New York State Courts, the Supreme Court's summary dismissal of the Negron appeal was a decision upon the merits of each of Negron's claims. In the alternative appellees maintain that, if the holding in In re Negron has not foreclosed appellants' recovery on the merits of their void for vagueness claim, appellants should, as ordered below, pursue that claim as well as their two other claims first in the New York State Courts and thus be required to exhaust their state remedies before seeking to have the federal courts hold that § 712(b) is an unconstitutional statute.
Judge Frankel found that the appellees had made a "strong case for the view that the Supreme Court rendered a controlling decision " in In re Negron, but he did not dismiss appellants' complaint on that basis. Rather, stressing that the New York courts should have the first opportunity to interpret the New York statute here involved,*fn1 he ruled that all three claims advanced by appellants had not been first presented to the New York State Courts, and the appellants by not presenting their claims to the New York State Courts had failed to meet the exhaustion requirements of 28 U.S.C. § 2254.
On appeal the appellants do not challenge the district court's holding that they failed to exhaust their Eighth Amendment and restraint of liberty claims.*fn2 They do argue, however, that they need not present their void for vagueness claim in the New York courts inasmuch as this issue was determined adversely by the New York Court of Appeals in Matter of Patricia A., 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432 (1972), and a presentation by them to the New York courts of such a claim would be futile. Thus, the appellants argue that, with respect to the claim that the statute is unconstitutionally vague, they are excused from the exhaustion requirement, and this claim is ripe for presentation to a U.S. District Court. The appellants further argue that the Supreme Court's dismissal for want of a substantial federal question in In re Negron, supra, did not constitute a disposition on the merits of the void for vagueness claim, since, although that claim had been reviewed by the New York Court of Appeals in the unappealed Patricia A. case, it had not been reviewed by the New York Court of Appeals in the appealed case, Matter of Tomasita N., supra, and therefore the void for vagueness claim was not presented to the Supreme Court in In re Negron. Consequently, appellants maintain that, as the Supreme Court could not have reached the merits of the claim when it dismissed the Negron appeal for want of a substantial federal question, the issue of whether § 712(b) is void for vagueness has not been foreclosed from federal court examination in the lower federal courts.
In order for us to resolve the issue of whether appellants should be excused from the exhaustion of the state remedies requirement on the void for vagueness claim because the state courts have already definitively ruled on it, we must scrutinize the prior New York State Court proceedings in two cases factually unrelated to each other, Matter of Patricia A. ; and Matter of Tomasita N., to which we have already alluded.
In Patricia A., a sixteen-year-old girl charged with being a PINS challenged the constitutionality of the PINS statute, the statue here attacked. She contended in the New York Family Court that Section 712(b) was void for vagueness, the identical claim made here. She also attacked the statute on equal protection grounds because the statute applied to boys until they were sixteen years old but to girls until they were eighteen years old. The Family Court rejected these contentions and adjudged the girl to be a PINS. In her appeal to the Appellate Division, she raised void for vagueness, equal protection, and due process arguments. The Appellate Division affirmed without opinion. Matter of Patricia A., 39 App. Div. 2d 648, 332 N.Y.S.2d 375 (2d Dep't 1972). Patricia A. then appealed to the New York Court of Appeals. Matter of Patricia A., 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432 (1972). In Chief Judge Fuld's opinion there was an extended and careful analysis of whether Section 712(b) is void for vagueness. Following this discussion he wrote:
Concluding, then, that the statute is sufficiently definite, we turn to the charge that it unconstitutionally discriminates ...