The opinion of the court was delivered by: GLASSER
A petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on April 30, 1982, on behalf of James Dixon York and Abdul Majid (f/k/a Anthony L. LaBorde). The petitioners also submitted for the Court's signature an order to show cause that would direct the respondent, Benjamin Ward, Commissioner of Correction of the City of New York, to show cause why the writ of habeas corpus should not be issued.
The petition alleges that the petitioners are in the custody of the respondent as pre-trial detainees awaiting trial for murder and attempted murder of New York City police officers in the County of Queens. Their trial is scheduled to begin on May 3, 1982 in the Supreme Court of the State of New York in that County.
On or about April 21, 1982, pursuant to New York Criminal Procedure Law § 230.10 et seq., which became effective in 1953, the petitioners moved before the Appellate Division of the Supreme Court of the State of New York, Second Department, for an order granting them a change of venue to Kings County, based upon their assertion that extensive and highly prejudicial pretrial publicity coupled with other factors detailed in their supporting affidavits raise serious doubts about the likelihood that they could be fairly tried in Queens County.
On or about April 26, 1982, without argument or an evidentiary hearing, the Appellate Division denied the motion. On April 29, 1982, the Court of Appeals of the State of New York dismissed petitioners' motion for leave to appeal for the reason that the order of the Appellate Division is not appealable under the Criminal Procedure Law.
The petitioners contend that the statute which confers upon the Appellate Division rather than the trial court jurisdiction to entertain a motion for change of venue is unconstitutional in that it denies them due process and equal protection of the law without specifying in what respect they have been denied either. They request that this Court issue the writ in their favor or, in the alternative, that it direct their release if they are not permitted to move the trial court for a change of venue or, in the further alternative, that the Court of Appeals be directed to entertain the appeal from the order of the Appellate Division and that §§ 230.10 et seq. of the New York Criminal Procedure Law be declared unconstitutional on its face or as applied to the petitioners.
The petition was filed pursuant to 28 U.S.C. § 2254, which provides in part as follows:
"(a) ... a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
The power to grant a writ of habeas corpus is conferred by 28 U.S.C. § 2241 which provides in part as follows:
"(c) The writ of habeas corpus shall not extend to a prisoner unless
(3) He is in custody in violation of the Constitution or laws or treaties of the United States;..."
The petitioners make no allegation that they are in custody unlawfully, in violation of the Constitution or laws or treaties of the United States. Their attack is aimed entirely at the New York statute that prescribes the procedure for making a motion for a change of venue.
The writ of habeas corpus is cherished as the swift and imperative remedy in all cases of unlawful confinement. It was never conceived to be the means by which a state proceeding can be aborted or a decree by which the orderly functioning of the State's judicial processes can be disrupted. Nor is the federal habeas corpus to be converted "into a pretrial motion forum for state prisoners." See, Braden v. ...