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April 22, 1976

Thomas PALERMO and Sheldon Saltzman, Plaintiffs,
Russell OSWALD et al., Defendants

The opinion of the court was delivered by: GRIESA

GRIESA, District Judge.

 This action was commenced in 1970 at a time when plaintiffs Palermo and Saltzman were both New York State prisoners. They sued various defendants seeking damages and an order that they be released from prison and certain other relief.

 The complaint was brought under 42 U.S.C., Sections 1983 and 1985, alleging violations of plaintiffs' constitutional rights. Basically, the allegation was that Queens County District Attorney Mackell and other officials, including members of the New York Parole Board, had participated in making an agreement in October 1969 with Palermo and Saltzman which induced these men to arrange for the return of $4,000,000 in jewels stolen from the Provident Loan Society. The allegation in the complaint was that this agreement also induced Palermo and Saltzman to plead guilty to the Provident Loan Society robbery. The complaint alleged that various considerations were agreed to, the main ones being that Palermo and Saltzman would receive suspended sentences or discharges by the Queens County Court on the Provident Loan Society matter and that they would be paroled in August 1970 on sentences which they had received in Richmond County on another case.

 Shortly after the action was brought there were motions made to dismiss the complaint. These motions were heard by the then District Judge Mansfield who filed a decision on January 15, 1971, which is reported at 323 F. Supp. 478. Judge Mansfield stated, at page 485 of that decision:

". . . it is a fundamental prerequisite of the plea negotiation process that the representations made to the defendant be accurate, and that promises made to him be kept . . . ."

 Judge Mansfield held that the complaint stated a valid claim against Parole Commissioners Oswald and Jones and other parole commissioners named as John Doe defendants, in that the complaint alleged that the parole board members had promised parole to Palermo and Saltzman on the Richmond County charge and had failed to keep that promise. Judge Mansfield refused to dismiss the complaint as to Oswald, Jones and other parole commissioners named as John Doe defendants. Judge Mansfield also denied the motion to dismiss the case as to a New York City detective named John O'Connor, who had participated in the plea negotiations. Judge Mansfield held that there was no immunity or other legal reason for dismissal as to O'Connor.

 However, the complaint was dismissed as against most of the defendants for various legal reasons. Most of Judge Mansfield's discussion in this connection is irrelevant to our present problems except that which deals with District Attorney Mackell and Chief Assistant District Attorney of Queens County Ludwig. Mackell and Ludwig were both named as defendants in the original complaint. As to these defendants Judge Mansfield stated, at page 485 of the opinion:

"The present complaint, however, is limited to a general charge that the defendants failed to fulfill the commitments made, a failure that could have occurred even though they used reasonable diligence, since the power to grant parole rested with the Parole Board and not with the prosecutorial defendants."

 However, Judge Mansfield also stated at the same page:

"If it were alleged that these prosecutorial defendants had entered into the alleged agreement with knowledge that the agreement would in all probability not be performed, we would be inclined to uphold the complaint on the ground that no compelling justification exists for cloaking them with immunity, since plea agreements touch at the heart of such liberties as are embodied in the presumption of innocence and the right to a jury trial, and public policy accordingly dictates that the conduct of officials entering into such agreements be measured by a high standard of honor, faithfulness and respect for constitutional rights."

 Judge Mansfield gave the plaintiffs thirty days to file an amended complaint against any of the defendants dismissed from the case, and an amended complaint was filed within the thirty-day period referred to by Judge Mansfield.

 There was a motion to dismiss the amended complaint in response to which Judge Mansfield filed a decision July 26, 1971. Basically, Judge Mansfield left the case in the same posture as in the first decision. The case was left standing as against defendants Oswald, Jones, O'Connor and the John Doe defendants. Although the amended complaint attempted to allege causes of action against other defendants including Mackell and Ludwig, Judge Mansfield held that the amended complaint should be dismissed as against these other defendants. At this time Palermo and Saltzman were pro se. No final judgment was entered as to the dismissed defendants, so that presumably any right of appeal will accrue as of the time that final judgment is entered following the present proceeding.

 The case was dormant for a time. Then counsel was obtained for plaintiffs. Following a decision of the United States Supreme Court in Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439, 1973, there were certain motion proceedings in the present case. The Preiser decision held that a Section 1983 claim for injunctive relief in the form of release from prison must be treated as a habeas corpus petition with the attendant requirement of exhaustion of state remedies.

 The Attorney General of New York moved in the present case to dismiss the injunction phase of the case, alleging that state remedies had not been exhausted.

 It is conceded that Saltzman did not exhaust his state remedies. Also Saltzman was released on parole in July 1974. Therefore, there is no claim in the present case for any injunctive or habeas corpus relief on the part of Saltzman. The only thing to which such a request for relief could relate would be Saltzman's present parole status, but there is no claim for habeas relief in this case with respect to Saltzman's parole status.

 As to Palermo, the State eventually withdrew its defense of failure to exhaust state remedies. Indeed, the record indicated that Palermo had made a strenuous effort to use state remedies and had been met by a bewildering array of procedural difficulties. I am convinced that Palermo exhausted his state remedies and that there is jurisdiction in the present action to entertain Palermo's habeas corpus request. The State does not contend otherwise.

 It was basically in this posture that the case finally came on for trial. The claims for trial were, first, the damage claims of both Palermo and Saltzman against former Parole Commissioners Oswald and Jones.

 It should also be noted that although certain other parole commissioners or former parole commissioners were named as John Doe defendants in the complaint, none of them was ever served with process or brought in as parties. Therefore, there has been no trial of any claims against any present or former parole commissioner other than Oswald and Jones. To the extent that the record needs to be cleared on this point, the action is dismissed as against all the John Doe and Richard Roe defendants, the anonymous parole commissioners.

 Now, continuing with the issues for trial, there was also the damage claim against Detective O'Connor. In addition, as already noted, the habeas corpus claim of Palermo needed to be determined by the trial. It should be noted that Palermo was considered for parole in June 1975, but parole was refused. He is supposed to be considered again in January 1977. Palermo is incarcerated at the Greenhaven Correctional Facility.

 In order to have a defendant subject to an appropriate court order in the event the habeas petition of Palermo were to be granted, the State consented to the joining of the Warden of Greenhaven as a party defendant.

 The trial commenced April 19, 1976. A jury was empaneled to try the damage claim. The habeas claim, of course, was for determination by the Court without the jury.

 At the conclusion of all the evidence on April 21, I held that there was insufficient evidence to submit any of the damage claims, that is, the claims against Oswald, Jones and O'Connor, to the jury and I dismissed the case as against these defendants.

 This leaves for determination the habeas corpus claim of Palermo. The following are my findings of fact and ...

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