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December 28, 1979

UNITED STATES OF AMERICA ex rel. JOHN SAVINO, Petitioner, against WALTER FLOOD, Warden, Nassau County Correctional Facility, Respondent.

The opinion of the court was delivered by: PLATT


Petitioner, John Savino, has filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Nassau County Court, petitioner was convicted on November 6, 1974 of four counts of promoting gambling in the second degree, in violation of New York Penal Law § 225.05 (McKinney's 1967). Through an elaborate combination of consecutive and concurrent sentences, the trial judge ultimately sentenced petitioner to three consecutive one-year terms of imprisonment, on the theory that each count represented a discrete criminal offense subject to the statutory maximum penalty. *fn1" Petitioner is currently serving his sentence at the Nassau County Correctional Facility.

 Petitioner sets forth essentially three grounds for federal habeas corpus relief. First, he argues that his sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Second, he contends that he was denied both due process and equal protection, guaranteed by the Fourteenth Amendment, because a co-defendant convicted on similar counts received a different sentence. Third, he asserts that his sentence is illegal in that it violates Penal Law § 70.25(2) and (3), which prohibit definite consecutive sentences from exceeding one year in the aggregate where the acts which are the subject of the punishment arose from the same transaction or parts of a single incident.

 By order to show cause dated August 28, 1979, we directed respondent to appear and argue in opposition to the petition. The parties appeared on September 21, 1979, and we reserved decision, primarily on the issue of whether petitioner has properly exhausted his State remedies, as required by 28 U.S.C. § 2254(b) and (c), on his first and second grounds for relief. We find that he has not and dismiss the petition as to those grounds.


 To facilitate understanding of our decision, we set forth the post-conviction history of the case in some detail.

 Petitioner appealed his conviction in timely fashion to the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, Second Department. That Court, with a memorandum opinion, reversed the judgment of the Nassau County Court on the law. The New York Court of Appeals granted respondent leave to appeal, and unanimously reversed the Appellate Term, remanding the case to that Court in an opinion rendered March 23, 1978. People v. Savino, 44 N.Y.2d 669, 405 N.Y.S.2d 35, 376 N.E.2d 196 (1978). Subsequently, on respondent's motion to amend the remittitur, the Court of Appeals remanded the case instead to the Appellate Division, Second Department, in response to an intervening change in Article 6, § 8(d) of the New York Constitution which altered the jurisdiction of the Appellate Term.

 In a memorandum opinion, the Appellate Division affirmed petitioner's conviction and remitted the case to the County Court for petitioner's surrender to begin serving his sentence. People v. Savino, 65 A.D.2d 803, 411 N.Y.S.2d 195 (2d Dept. 1978). The Court of Appeals (Wachtler, J.) denied petitioner leave to appeal the Appellate Division's affirmance on January 3, 1979.

 Petitioner then filed in this Court, on April 25, 1979, a first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, relying on exactly the same grounds he advances in the present petition. On petitioner's motion, we dismissed the petition without prejudice to a renewal because petitioner had failed to exhaust State remedies as to his Eighth and Fourteenth Amendment grounds. It was clear at that point that petitioner had put before the State appellate courts only the argument that his sentence violated Penal Law § 70.25(2) and (3). The dispositions, then, of the Appellate Division and the Court of Appeals, as well as the latter's ultimate denial of leave to appeal, were all founded exclusively on the interpretation of State law.

 Thereafter, petitioner sought to correct his conceded failure to exhaust by filing a verified petition for a State writ of habeas corpus, pursuant to New York CPLR Art. 70, in Supreme Court, Nassau County. He there asserted precisely the same grounds for relief as in his first petition here and in the present petition now before this Court. In an unreported memorandum opinion dated July 16, 1979, the Court dismissed the petition as meritless. The Court concurred with the appellate courts that petitioner's sentence was legal and proper as a matter of statutory construction. The Court also addressed, albeit briefly, petitioner's claims of "cruel and unusual punishment" and denial of equal protection, rejecting both.

 Eleven days later, petitioner filed the present petition.


 Subsection (b) of 28 U.S.C. § 2254 provides in pertinent part that a Federal Court may not consider a State prisoner's habeas corpus petition "unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is . . . an absence of available State corrective process . . ." Further, subsection (c) provides that "(a)n applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented."

 This codification of the exhaustion-of-state-remedies doctrine reflects a long tradition in the case law. See, e.g., Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Nelson v. George, 399 U.S. 224, 90 S. Ct. 1963, 26 L. Ed. 2d 578 (1970); Ennis v. LeFevre, 560 F.2d 1072 (2d Cir. 1977), Cert. denied, 435 U.S. 976, 98 S. Ct. 1625, 56 L. Ed. 2d 70 (1978). The policy underlying the doctrine has often been stated to be that of federal-state comity. Picard, supra, 404 U.S. at 275, 92 S. Ct. 509; Fay v. Noia, 372 U.S. 391, 419-20, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). The result of the doctrine has been "an accommodation of our federal system designed to give the State an initial "opportunity to pass upon and correct' alleged ...

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