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August 5, 1975

Jerome O. GLUCKSMAN, Plaintiff,
Harold BIRNS et al., Defendants. Jerome O. GLUCKSMAN, Petitioner, v. STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES and Superintendent of Wallkill Correctional Facility, Respondents

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

 Jerome O. Glucksman ("Glucksman"), a former Assistant State Attorney General convicted in New York State Supreme Court of conspiracy and attempted extortion, petitions pro se for a writ of habeas corpus, and raises some of the same claims in an action for injunctive relief and damages pursuant to 42 U.S.C. § 1983. Although presently free on his own recognizance, having served six months and twenty days of concurrent sentences of from one to two years imposed in May, 1971, he remains in state custody for purposes of federal habeas corpus. See Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973). He brought the instant actions in response to an order issued January 22, 1975 to surrender to serve the remainder of these sentences. New York Supreme Court Justice Harold Birns who issued the order has deferred its enforcement in anticipation of this Court's decision.

 In his petition, Glucksman attacks the legality of the underlying conviction as having been obtained in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States and, further, charges that his reincarceration now would violate his Eighth and Fourteenth Amendment rights. The latter contention is also the basis of his action pursuant to 42 U.S.C. § 1983. The defendants named in the civil rights action move pursuant to Rule 12(b)(1) and (6), Fed.R.Civ.P., to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. After full consideration, for the reasons set forth below, this Court finds petitioner's claims to be without merit and, accordingly, dismisses his petition for a writ of habeas corpus and grants defendants' motion to dismiss the civil rights complaint.

 I. Facts

 Petitioner comes to this Court by a complicated route. In September, 1965 while he was an Assistant State Attorney General, a New York County grand jury began to investigate charges of extortion made against him. Aware of these charges, Glucksman went uninvited to the office of the District Attorney and, asserting his readiness to make exculpatory explanations, voluntarily offered to testify before the grand jury. He was told that if he wished to testify he would have to waive his immunity with regard to questions concerning the performance of his official duties. He responded that he was aware of Article 1, § 6 of the New York State Constitution which provided that he would have to forfeit his public office should he refuse to testify upon being subpoenaed. Nevertheless, several days later, without being subpoenaed, he appeared before the grand jury, willingly signed a waiver of immunity, and testified.

 In April, 1966, the grand jury returned two indictments against him, the first charging perjury in the first degree before the grand jury, and the second, conspiracy and attempted extortion.

 These two indictments were tried separately. In April, 1969, Glucksman was convicted of seven counts of perjury in the second degree and sentenced to a nine month term of imprisonment. His appeals of this judgment were unsuccessful, *fn1" and he does not here challenge that conviction.

 In May, 1971, Glucksman was convicted, with two codefendants, of conspiracy and attempted extortion. After serving six months and twenty days of his concurrent one to two year sentences, he obtained a stay of further execution of these sentences pending appeal, and was released pursuant to CPL § 460.50(4) (McKinney's 1971) in December, 1971. His subsequent appeals, raising substantially the same contentions presented here, were also unsuccessful. *fn2"

 Glucksman was notified, upon the Court of Appeals' affirmance of this conviction, that his case had been placed on the calendar of the Supreme Court, New York County, for his surrender on January 22, 1975. On that day, he moved to strike his surrender on the ground that, pursuant to CPL § 460.50 (4), his stay automatically expired 120 days after his release and, consequently, his sentence had already terminated. Alternatively, he argued, the state was estopped from seeking his reincarceration because by not forcing his surrender upon expiration of his stay, the state had led him to believe that his sentence had expired.

 The Supreme Court denied his motion to strike his surrender, *fn3" and the Appellate Division, First Department denied leave to appeal. *fn4" Subsequently, the Appellate Division unanimously dismissed Glucksman's petition for a writ of prohibition barring his reincarceration, *fn5" brought pursuant to Article 78, NYCPLR 78 (McKinney's 1972), and the Court of Appeals dismissed his appeal from this ruling on the ground that it raised no substantial constitutional issue. *fn6"

 Thereafter, Glucksman instituted his present actions in this Court.

 All parties agree that Glucksman has exhausted his state remedies as to all claims raised here, both those attacking his underlying conviction and those challenging his imminent reincarceration, and is thus properly before this Court. See Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

 Unless a petitioner for a writ of habeas corpus can establish by convincing evidence that the state proceeding suffered from any of the defects enumerated in 28 U.S.C. § 2254(d) *fn7" or that the factual determinations by the state court were erroneous, the state findings are presumed correct and it would be improper for a federal court to make new findings on the same issues. LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973); United States ex rel. Cole v. LaVallee, 376 F. Supp. 6, 10 (S.D.N.Y. 1974); United States ex rel. Griffin v. Vincent, 359 F. Supp. 1072, 1073 (S.D.N.Y.1973). Only when a petitioner sustains his burden is the federal court empowered, indeed obligated, to examine the circumstances anew. 28 ...

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