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UNITED STATES EX REL. CARMONA v. WARD

April 16, 1976

UNITED STATES ex rel. Martha CARMONA and Donna Foggie, and all other persons similarly situated, Petitioners,
v.
Benjamin WARD, Commissioner of the New York State Department of Correctional Services, et al., Respondents



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 MOTLEY, District Judge.

 Pursuant to Rule 24 of the Federal Rules of Civil Procedure, Roberta Fowler has moved to intervene in this habeas corpus action which challenges the constitutionality of certain sections of the Penal Law, Criminal Procedure Law, and Correction Law of New York, as amended in 1973, governing the treatment of Class A felony drug offenders. The motion is granted.

 Ms. Fowler is presently incarcerated at Bedford Hills Correctional Facility pursuant to a conviction for the sale of.13 grams of a substance containing cocaine, a violation of ยง 220.39(1) of the New York Penal Law. For this A-III felony, Ms. Fowler was sentenced to a term of four years to life imprisonment. Her conviction was rendered at a jury trial in the County Court for Albany County in February, 1974, and was affirmed by the New York Court of Appeals sub nom. People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975).

 In her proposed petition for a writ of habeas corpus, Ms. Fowler's principal claim is that the statutory framework for dealing with drug law offenders is violative of her federal constitutional rights under the Eighth and Fourteenth Amendments. While she also argues that the state trial court committed several errors of law which, singly and cumulatively, denied her a fair trial, her principal contentions are very similar to those raised by Ms. Foggie and Ms. Carmona in the original petition in this action. Under these circumstances, the court is persuaded that there exist common questions of law and fact such as to warrant intervention under Rule 24(b). Moreover, in view of the fact that Ms. Fowler's intervention is unopposed by the initial petitioners and in view of assurances by her counsel, the court is convinced that the addition of Ms. Fowler will not unduly delay or prejudice the adjudication of the rights of the original parties to this action.

 The Mosley-McNair Intervention Petition

 Larry C. Mosley and Doris McNair have also moved to intervene in this action, and their motion is denied. Mr. Mosley pleaded guilty in Monroe County Court to the A-III felony of criminal sale of a controlled substance (heroin) in the third degree *fn1" and, after a remand from the New York Court of Appeals, was sentenced to an indeterminate term of one year to life imprisonment, which he is presently serving in the Attica Correctional Facility.

 Ms. McNair was found guilty in Monroe County Court of the A-II felony of criminal possession of a controlled substance (heroin) in the second degree *fn2" and the Class A misdemeanors of criminal use of drug paraphernalia *fn3" and criminal possession of a hypodermic instrument. *fn4" Ms. McNair was sentenced to concurrent terms of six years to life on the felony count and one year each on the misdemeanor counts, which she is presently serving in the Bedford Hills Correctional Facility.

 Mr. Mosley's and Ms. McNair's cases were consolidated for purposes of appeal. The Appellate Division unanimously reversed the trial court's initial determination -- in Mr. Mosley's case -- that the Class A classification of drug offenses, the mandatory life sentence, and the mandatory minimum term of imprisonment were unconstitutional. The Appellate Division unanimously affirmed McNair's conviction, upholding the sentencing provisions of the laws in People v. McNair, 46 A.D.2d 476, 363 N.Y.S.2d 151 (4th Dept. 1975). The orders of the Appellate Division were affirmed by the New York Court of Appeals sub nom. People v. Broadie, supra.

 By petitions sworn on July 18 and 16, 1975, respectively, Mr. Mosley and Ms. McNair applied to the United States District Court for the Western District of New York for writs of habeas corpus. After consolidation of the two actions on October 28, 1975, Judge Burke subsequently issued an order dated January 13, 1976, adjourning indefinitely the proceedings pending determination of this motion to intervene.

 In their motion to intervene, Mosley and McNair argue that they qualify for intervention under both the mandatory and permissive provisions of Rule 24. *fn5"

 In order to qualify for non-statutory intervention of right, the petitioners a) must claim an interest in the transaction which is the subject of the action, b) must be so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest, and c) must demonstrate that their interest is not adequately represented by existing parties. *fn6" Petitioners' intervention argument is premised, first, upon the fact that they -- like the original petitioners in this action -- have been sentenced under the statutory scheme at issue in this case; and, secondly, upon the similarity of the constitutional challenges in the two actions.

 At the outset, it appears to the court that petitioners lack an "interest" in the subject matter of this suit such as to justify their intervention as a matter of right. To warrant intervention, petitioners must, of course, be more than merely "interested" in the litigation. However, the problem of defining the nature of the required interest has been a troublesome one for the courts. As stated by the United States Court of Appeals for the District of Columbia in the leading case of Nuesse v. Camp : *fn7"

 
We know of no concise yet comprehensible definition of what constitutes a litigable "interest" for purposes of standing and intervention under Rule 24(a). One court has recently reverted to the narrow formulation that "interest" means "a specific legal or equitable interest in the chose." Toles v. United States, 371 F.2d 784 (10th Cir. 1967). We think a more instructive approach is to let our construction be guided by the policies behind the "interest" requirement. We know from the recent amendments to the civil rules that in the intervention area the "interest" test is primarily a practical ...

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