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November 16, 1978

Vito FINETTI, Petitioner,
David HARRIS, Superintendent, Greenhaven Correctional Facility, Respondent

The opinion of the court was delivered by: STEWART


Petitioner, Vito Finetti, was convicted of Robbery in the First Degree and Grand Larceny in the Second Degree after a jury trial in the County Court of Orange County, New York State. He was sentenced to a term of eight and one-third to twenty-five years and is presently incarcerated at the Greenhaven Correctional Facility. Petitioner, on February 9, 1978, filed a Notice of Appeal to the Appellate Division, Second Department, alleging certain errors at the trial. *fn1" On this same date, petitioner's motion for a stay and bail pending appeal pursuant to N.Y. Criminal Procedure Law (CPL) § 460.50 was denied without opinion by the Presiding Justice of the Appellate Division, Second Department. Petitioner then filed a petition for a writ of habeas corpus with this Court alleging that the denial of bail without a statement of reasons was unconstitutional. Relying on the recent decision of Brown v. Wilmot, 572 F.2d 404 (2d Cir. 1978) (per curiam), we denied the petition without prejudice on the grounds that petitioner had failed to exhaust his state remedies within the meaning of Brown. *fn2" Manuel G. Guerreiro on behalf of Finetti v. LeFevre, No. 78 Civ. 1175 (S.D.N.Y. April 7, 1978) (Stewart, J.). Petitioner, by his present attorney, next moved before the Appellate Division to reargue the February 9, 1978 order denying bail. This motion was denied, again without opinion, on May 29, 1978.

 On June 15, 1978, petitioner filed for a writ of habeas corpus in the Appellate Division, Second Department. This petition raised the same constitutional challenges as the present federal petition. By a letter dated June 19, 1978, petitioner's attorney was informed by Irving N. Selkin, Clerk of the Appellate Division Second Department, that the "application for a writ of habeas corpus . . . may not be entertained because there is no basis for a finding of illegal detention." The full text of this letter is set out below. *fn3" On July 2, 1978, petitioner made the present application for a writ of habeas corpus. After some delay, not the fault of petitioner, the Attorney General was ordered to respond. We now have this response as well as those papers filed on behalf of petitioner.


 We must first determine whether petitioner has exhausted his state remedies. It is clear that petitioner's remedy in the form of a direct appeal of the order denying bail pending appeal has been exhausted. Under New York law, there is no right to appeal such an order. People of the State of New York ex rel. Klein v. Krueger, 25 N.Y.2d 497, 500, 307 N.Y.S.2d 207, 210, 255 N.E.2d 552 (1969); People of the State of New York ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267 (1st Dept.), Motion for leave to appeal withdrawn, 17 N.Y.2d 422, 268 N.Y.S.2d 1028, 216 N.E.2d 32 (1966). However, as the Court of Appeals held in Brown v. Wilmot, supra, before state remedies will be deemed exhausted, a state habeas corpus proceeding must be brought raising the same constitutional challenges to the bail denial as are presented in the federal proceeding. Petitioner filed a proper state petition for a writ of habeas corpus. This petition, however, never came before any judge of any state court. Rather, the Clerk of the Appellate Division, Second Department, determined, apparently on his own authority, that the petition "may not be entertained." No further attempt was made at state review, and the present federal petition was filed. The question we are presented with, then, is whether the exhaustion prerequisite embodied in 28 U.S.C. § 2254 requires the petitioner to return to the state courts and seek once again to bring his petition before a state judge. We hold that it does not.

 The exhaustion requirement, built on notions of federalism, is a matter of comity, not jurisdiction. United States ex rel. Johnson v. Vincent, 507 F.2d 1309, 1312 (2d Cir. 1974), Cert. denied, 420 U.S. 994, 95 S. Ct. 1435, 43 L. Ed. 2d 678 (1975). Thus, where justice so requires, the federal court may deviate from the exhaustion requirement. United States ex rel. Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir. 1972). We think the present case is one where justice requires such a deviation. As noted above, petitioner attempted to bring a state habeas proceeding but was rebuffed, not by any judge, but by the clerk of the court. The clerk's decision that the petition "may not be entertained" is not appealable. See: People ex rel. Wilkes v. Fay, 27 A.D.2d 860, 278 N.Y.S.2d 581 (2d Dept. 1967). *fn4" We recognize that some other proceeding in the state courts, such as a mandamus action against the clerk, might have been available to petitioner. However, we hold that such proceedings need not have been pursued. In short, we agree with the words of Judge Moye in Emmett v. Ricketts, 397 F. Supp. 1025, 1047 (N.D.Ga.1975):

While the practice might accomplish exhaustion of the petitioners before the admittedly deserved relief was obtained, it would yield no dividends in terms of federal-state comity or the efficient administration of justice.

 See also: United States ex rel. Kling v. LaVallee, 306 F.2d 199, 203 (2d Cir. 1962) (Friendly, J., concurring).

 The present is not a case where the state courts have been denied "an opportunity to set their own Constitutional houses in order before the power of the federal courts is invoked." Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977). Or at least if the state courts have been denied that opportunity, it was at the hands of their own clerk, not petitioner. A similar circumstance is found in United States ex rel. East v. Rundle, 281 F. Supp. 118 (E.D.Pa.1968) where petitioner, like Finetti in the present case, had sought bail pending an appeal of his conviction.

His application for bail pending appeal was refused by the state trial court and by the Pennsylvania Superior Court (per curiam). East then attempted to appeal to the Pennsylvania Supreme Court. However, the Prothonotary of the Supreme Court apparently decided that the application for bail had no merit. The Prothonotary returned the application without placing it before the Supreme Court, and explained in a letter to East that "the Supreme (sic) Court has jurisdiction in this case and if they did not see fit to grant bail you cannot get it elsewhere." The relator than filed a habeas corpus petition with this Court.

 281 F. Supp. at 119. The district court held that petitioner had exhausted his state remedies:

In light of East's obvious immediate need for a final ruling on his bail application before the merit of his robbery conviction appeal was determined, the delay occasioned by the Prothonotary's return of his application rendered his state court remedy inadequate. Therefore we conclude that the relator is not required to return to the state courts on the bail issue or to convince the Prothonotary of the seriousness of his appeal application.

 Id. Similarly in Phillips v. Smith, 300 F. Supp. 130 (S.D.Ga.1969), petitioner filed for a writ of habeas corpus in the state Superior Court. The petition was denied, and petitioner attempted to appeal the denial to the Supreme Court of Georgia. Although a timely notice of appeal was filed with the Clerk of the Superior Court, the Clerk never docketed the appeal, as required by statute, nor took any other action in connection with the appeal. The court concluded that "Petitioner's state remedies have been frustrated by the nonaction of the Clerk and that the prisoner has exhausted his remedies on the state level." 300 F. Supp. at 132.

 We think the facts of the present case compel a similar conclusion. Petitioner has attempted to follow the mandate of the Court of Appeals in Brown v. Wilmot, supra, by filing a petition in the state courts for a writ of habeas corpus. This attempt has been frustrated, not by any judicial action, but by the clerk. The clerk's action, which is not appealable, would require petitioner to either return to the clerk and try to convince him to accept the petition or bring a collateral proceeding, such as mandamus, to compel the clerk to accept the petition. The former alternative was held unnecessary in East v. Rundle, supra. The latter, a collateral proceeding (mandamus) to compel the institution of another collateral proceeding (habeas corpus) seems likely to exhaust petitioner without any benefit "in terms of ...

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