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HOWARD v. OLGIATI

August 18, 1977.

Norman HOWARD, Petitioner,
v.
Ennis OLGIATI, Chairman, Board of Parole, New York State, Respondent.



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

ELFVIN, District Judge.

 Petitioner, currently paroled from a custodial sentence, submitted an application for a writ of habeas corpus under the provisions of Title 28, United States Code, Section 2254(a).

 On September 6, 1974 petitioner was found guilty of the crime of Grand Larceny in the Third Degree in violation of sections 20.00 and 155.30(1) of the New York Penal Law following a non-jury trial before the Honorable Ernest L. Colucci, Judge of the Erie County Court. On March 27, 1975, judgment was entered sentencing petitioner to an indeterminate term of imprisonment having a maximum term of three years.

 Following timely appeal, the New York Supreme Court, Appellate Division, Fourth Department, affirmed the conviction December 5, 1975. Petitioner subsequently was denied leave to appeal by the Court of Appeals of the State of New York. This petition followed.

 At the outset, it should be noted that my sole task is to determine whether the errors allegedly committed by the state courts constitute violations of petitioner's rights under the United States Constitution. This court has jurisdiction to entertain an application for a writ of habeas corpus only on the ground that petitioner's confinement violates the Constitution or the laws of the United States. 28 U.S.C. § 2254(a). *fn1" Such writ may not issue to correct mere errors of state law. See, Schaefer v. Leone, 443 F.2d 182 (2d Cir. 1971); Lee v. Henderson, 342 F. Supp. 561 (W.D.N.Y.1972).

 The burden of proof on a habeas corpus application falls on the one who seeks relief in federal court from a state conviction. He must establish by a preponderance of the evidence that the facts entitle him to a discharge from custody.

 Petitioner alleges three grounds in challenging his conviction. Specifically he contends that (1) cross-examination of the only identification witness was unduly restricted by the court thereby denying him a fair trial, (2) the evidence does not support the verdict, and (3) the court was impermissibly influenced to find petitioner's co-defendant, Richard Balsano, not guilty to the prejudice of petitioner.

 As to the third ground alleged, a review of the state records on the appeal and the petition for writ of habeas corpus indicates that this is the first time that this relief has been sought. In a habeas corpus action, a petitioner in state custody has the burden of proving that he has exhausted his state court remedies to challenge the propriety of his conviction. 28 U.S.C. § 2254(b); United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707 (2d Cir. 1960); United States ex rel. Cuomo v. Fay, 257 F.2d 438 (2d Cir. 1958), cert. denied, 358 U.S. 935, 79 S. Ct. 325, 3 L. Ed. 2d 307 (1959). Petitioner has not met this burden as to ground (3). The petition is dismissed as to the third ground. It is conceded by the state that exhaustion of state remedies as to the first and second grounds was accomplished.

 A brief summary of the facts and rulings of the trial court is indispensable for an understanding of this case.

 A phone call was received August 30, 1972 by Henry Rothschild, owner of J. Rothschild, Inc. (a wholesale tobacco firm), placing an order for six cases of cigarettes. They were to be delivered to a Wilson Farms Food Shop on Englewood Avenue in the Town of Tonawanda, N.Y. the following morning. Henry Rothschild testified that he had never previously done business with that store and did not know who had called. It was established that the owner of the store in question had not ordered the cigarettes and that he had not authorized anyone to do so on his behalf.

 On the following day, Terry Rothschild, a clerk-deliveryman with J. Rothschild, Inc., delivered the cigarettes as ordered. When he arrived at the store's front entrance, a man whom he later identified as petitioner came out of the store and instructed him to pull his truck to the "receiving area" on the side of the building next door. Terry Rothschild did as directed. There he was met by a second man whom he later identified as Richard Balsano. Balsano told Rothschild that he was waiting for the delivery but that he did not have the key for the "receiving area". Thereupon, Rothschild placed the cigarettes in front of the "receiving area" door while they waited for the key. Petitioner then reappeared and directed Rothschild to go into the store to be paid. He did so, but no one in the store, including the owner, John B. Di Miceli, knew anything about the cigarettes.When Rothschild returned to the "receiving area", both men and the cigarettes had disappeared. Terry Rothschild contacted the police and notified them of the incident and generally described the two men.

 On September 1, 1972 the Town of Tonawanda police took an unspecified number of photographs to Terry Rothschild's house but Rothschild was unable to identify any of the suspects as being either of the men at the store. On September 13, 1972, he appeared at the Town of Tonawanda police station and was shown a second series of photographs of suspects. At this time he picked out Norman Howard and Richard Balsano as the two men at the store.

 A preliminary hearing was held September 21, 1972 in the Tonawanda Town Justice Court. Prior to appearing in court, Terry Rothschild was informed that the suspects whose pictures he had selected would be in court and that they were accused of a similar type of theft from another tobacco ...


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