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KELLY v. SMITH

January 17, 1977

MICHAEL KELLY, Petitioner,
v.
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent


Edward R. Neaher


The opinion of the court was delivered by: NEAHER

MEMORANDUM ORDER

Petitioner was convicted of the possession and sale of drugs in the Supreme Court of Kings County on March 14, 1972. On November 28, 1973, a coram nobis petition under New York Criminal Procedure Law § 440.10 was filed. Petitioner charged illegal grand jury composition by systematic exclusion of blacks. No objection to grand jury composition had been made at trial. Relief was denied by the Appellate Division on February 11, 1974, affirmed by the New York Court of Appeals on April 2, 1974. This petition for federal habeas corpus relief, containing the same charges as made in the State proceedings, was filed on July 20, 1974 in the Western District of New York, and was transferred on May 6, 1976 to this court.

 Exhaustion of State Remedies

 The Attorney General concedes the issue of exhaustion, reporting in a memorandum that records of the § 440.10 motion reveal a denial on the merits by the Appellate Division.

 Because petitioner failed to object to grand jury composition at the trial, there is some question as to whether the coram nobis petition should have been considered on the merits. People v. Howard, 12 N.Y.2d 65, 187 N.E.2d 113, 236 N.Y.S.2d 39 (1962); United States ex rel. Cuomo v. Fay, 257 F.2d 438 (2 Cir. 1958), teaches that

 
"[invocation] of an improper remedy will suffice as an exhaustion . . . on a clear indication that the federal question was considered on the merits." 257 F.2d at 442.

 Here, the court concludes that consideration by the New York courts of petitioner's claim is sufficient to exhaust State remedies for the purposes of 28 U.S.C. § 2254(b).

 Waiver

 In Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976), the Supreme Court ruled that where State law imposed a waiver for failure to timely object to an unconstitutional grand jury indictment, federal courts would deny habeas corpus relief on the basis of "considerations of comity and concerns for the orderly administration of criminal justice." 96 S. Ct. at 1710. A petitioner who failed to make a timely objection would be allowed a federal collateral attack only upon a showing of cause for the failure and a showing of actual prejudice.

 Petitioner in the instant case failed to object within the time limit set by N.Y. CPL § 210.20, and offers no explanation or showing of actual prejudice.

 Francis, however, involved a Louisiana statute which explicitly provided for waiver. The Court in Francis was careful to warn that

 
"[In] a case where the state courts have declined to impose a waiver but have considered the merits of the prisoner's claim, different considerations would, of course, be applicable." 96 S. Ct. at 1711, n. 5.

 At the time of petitioner's conviction, N.Y. CPL § 210.20 provided that a motion charging defects in the grand jury proceedings

 
"should be made prior to entry of a plea of guilty or commencement of trial following a plea of not guilty. A motion made thereafter may be summarily denied . . . The court, in the interest of justice and for good cause shown, may, in its discretion, entertain ...

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