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January 17, 1977

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

Edward R. Neaher

The opinion of the court was delivered by: NEAHER


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).


 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 and dispose of the motion on the merits at any time before sentence."

 Although the New York statute does not explicitly provide for waiver, the New York courts have by no means "declined to impose a waiver." Paciona v. Marshall, 45 App. Div. 2d 462, 359 N.Y.S.2d 360 (4th Dept.), aff'd on other grounds, 35 N.Y.2d 289, 319 N.E.2d 199, 360 N.Y.S.2d 882 (1974), holds that a failure to timely object to grand jury composition results in waiver. This case was decided after petitioner's conviction, but it confirms the natural assumption that the very existence of a statutory time limit logically implies waiver. Not only had a federal court in 1970 perceived a waiver result in the statute, U.S.A. ex rel. Sabella v. Follette, 316 F. Supp. 452 (S.D.N.Y. 1970), but the New York decisions reveal a policy of routine denial of untimely objections except in extraordinary circumstances. People v. Percy, 74 Misc. 2d 522, 345 N.Y.S.2d 276, aff'd, 45 A.D.2d 284, 358 N.Y.S.2d 434 (2d Dept. 1973); People v. Tebsherany, 34 App. Div. 2d 1045, 312 N.Y.S.2d 154 (3rd Dept. 1970); People v. Hunt, 32 App. Div. 2d 572, 298 N.Y.S.2d 1007 (3d Dept. 1969); People v. Caron, 121 N.Y.S.2d 404 (1953).

 The facts of these cases suggest that the New York courts will not consider an untimely objection to grand jury composition absent an explanation for the failure to timely object and a showing of prejudice. This is exactly the sort of situation in which the Francis court intended "considerations of comity and concerns for the orderly administration of criminal justice" to apply.

 One last problem remains. Francis was not decided until after petitioner had filed his habeas corpus petition. This fact raises the issue of retroactivity.

 In non-constitutional, non-criminal cases dealing with retroactivity, the Supreme Court has instructed that such decisions are to be retroactive unless a new principle of law is enunciated


"either by overruling clear past precedent on which litigants may have relied . .. or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . . ."

 Chevron Oil Co. v. Huson, 404 U.S. 97 at 106, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 20 L. Ed. 2d 1231, 88 S. Ct. 2224 (1968).

 A case of first impression, Francis overruled no "clear past precedent," and its resolution was "clearly foreshadowed."

 In Davis v. United States, 411 U.S. 233, 36 L. Ed. 2d 216, 93 S. Ct. 1577 (1973), decided before final rejection of petitioner's coram nobis application, the Supreme Court ruled that since an untimely claim of grand jury discrimination by a federal prisoner resulted in waiver under Rule 12(b)(2) of the Federal Rules of Criminal Procedure, the waiver would also apply to a subsequent habeas corpus proceeding. Given the traditional policies of federalism at work in habeas corpus (for example, in the exhaustion requirements), it is but a short step from Davis to Francis.

 Even Davis was foreshadowed by Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 785, 90 S. Ct. 1458 (1970). In Parker v. North Carolina, State law imposed a waiver for failure to timely object to grand jury composition. The State courts had denied post-conviction relief on this basis and the Supreme Court concluded that the existence of "an adequate state ground" precluded consideration of the merits on a writ of certiorari. Francis, then, is but an extension of a policy evidenced in a number of earlier, related decisions.

 The decision in Francis bars consideration of petitioner's claim.

 Accordingly, the petition for a writ of habeas corpus must be denied.


 The Clerk of Court is directed to enter judgment in favor of the respondent and against the petitioner dismissing the petition. The Clerk is further directed to forward copies of this memorandum order to the attorney for petitioner, Eleanor Jackson Piel, Esq., 36 West 44th Street, New York, N.Y. 10036; and to the Attorney General of the State of New York, attention Ralph McMurry, Esq.



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