Trustees-in-bankruptcy appeal from a judgment of the United States District Court for the District of Connecticut, Daly, J., granting petitioner's application for a writ of habeas corpus on the ground that a United States bankruptcy judge is not empowered to imprison a recalcitrant witness for civil contempt. Because petitioner failed to see leave to appeal the civil contempt order of the bankruptcy judge, habeas corpus relief was improvidently granted. The judgment of the district court is vacated and the case remanded with instructions to dismiss the petition. Concurring opinion by Judge Van Graafeiland.
VAN GRAAFEILAND, MESKILL and PRATT, Circuit Judges.
On January 15, 1982, Judge Shiff of the United States Bankruptcy Court for the District of Connecticut found Anthony Martin-Trigona in civil contempt. Judge Shiff ordered Martin-Trigona committed to the custody of the United States Attorney General when he refused during the bankruptcy proceedings to answer questions relating to the administration of his bankrupt estate and the bankrupt estate of a corporation he owned. In re Martin-Trigona, 16 Bankr. 792 (Bankr. D. Conn. 1982). On January 29, Martin-Trigona petitioned the district court for a writ of habeas corpus alleging that the bankruptcy court lacked the power to imprison him for civil contempt. District Judge Daly granted habeas corpus relief and ordered Martin-Trigona released from custody. Martin-Trigona v. Shiff, 19 Bankr. 1001 (D.Conn. 1982). The trustees in bankruptcy brought this appeal.
Because we hold that the district court improvidently granted habeas corpus relief, we do not reach the merits of petitioner's claim. Ordinarily, one cannot, by a petition for a writ of habeas corpus, obtain review of an order that is appealable either in state or federal court. Because Martin-Trigona failed to seek leave to appeal the order adjudging him in civil contempt, it was error for the district court to grant habeas corpus relief. Accordingly, we vacate the judgment below and remand with instructions to dismiss the petition and to take such further action as the district court deems appropriate on any certified matters.
Anthony Martin-Trigona is no stranger to the federal courts. His tour through the court system is marked by a persistent refusal to cooperate with court orders and purposeful efforts to delay and jaundice court proceedings. His distinctive brand of pro se advocacy has reached this Court after a barrage of procedural and jurisdictional challenges which have frustrated the courts below and have caused these bankruptcy proceedings to advance at a snail's pace, with little progress made toward settling creditors' claims during the past two and one-half years.*fn1
On September 10, 1980, Martin-Trigona, as owner and president of New Haven Radio, Inc. (corporate estate), filed a petition for reorganization of the company pursuant to 11 U.S.C. § 1101 et seq. (Supp. III 1979) in the United States Bankruptcy Court for the Southern District of New York. On or about December 2, 1980, Martin-Trigona's personal estate also came under the bankruptcy court's jurisdiction. In January 1981 his two bankruptcy cases were ordered transferred to the United States Bankruptcy Court for the District of Connecticut where they were placed on the docket of Bankruptcy Judge Shiff. Martin-Trigona appealed the transfer order to the United States District Court for the Southern District of New York. He filed the notice of appeal without applying for a stay of the transfer order or seeking leave to appeal.*fn2
Administration of the two estates commenced in Connecticut. The trustees applied pursuant to Bankruptcy Rule 205(a) for an order to conduct an examination of Martin-Trigona.*fn3 When Martin-Trigona appeared pro se before the bankruptcy court on January 15, 1982,*fn4 he announced his resolve not to participate in the examination because, in his opinion, the bankruptcy court lacked jurisdiction over the cases while his appeal of the transfer order was pending in the Southern District of New York. Martin-Trigona "invited" the court to find him in civil contempt so that he could have his conduct certified to the district court pursuant to Bankruptcy Rule 920(a)(4)*fn5 where he planned to air his challenge to the jurisdiction of the bankruptcy court. Judge Shiff ordered Martin-Trigona to answer the trustees' questions, and when he refused, the court found him in civil contempt and committed him to the custody of the attorney general. Judge Shiff reasoned that section 241(a) of the Bankruptcy Reform Act of 1978 (Reform Act), Pub. L. No. 95-598, 92 Stat. 2549, 2668, was intended by Congress to confer on bankruptcy judges the power to sanction civil contempt by fine or imprisonment, see 28 U.S.C. § 1481 (Supp. IV 1980), and that any limits on the bankruptcy judge's contempt powers under Bankruptcy Rule 920(a) were inapplicable to the extent inconsistent with the Reform Act. See Reform Act § 405(d), 92 Stat. 2685.
On January 29, 1982, Martin-Trigona filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut.*fn6 28 U.S.C. § 2241 (1976). Oddly, the petition named Bankruptcy Judge Shiff as defendant. On March 31, 1982, District Judge Daly ordered the trustees, as the real parties-in-interest, and Judge Shiff, through the United States Attorney, to respond and show cause why a writ of habeas corpus should not issue. The trustees responded on April 2, 1982. The United States Attorney's Office responded the same day, but declined to argue the merit of the habeas corpus petition.*fn7
Without hearing oral argument, Judge Daly filed a memorandum of decision on April 19, 1982, concluding that the bankruptcy court was not empowered to order a recalcitrant witness imprisoned for civil contempt.*fn8 Martin-Trigona v. Shiff, 19 Bankr. 1001, 1003 (D Conn. 1982). Judgment was entered the following day granting habeas corpus relief and ordering Martin-Trigona released from custody.
Notice of appeal from the judgment was filed on April 22, 1982. The trustees of the corporate and personal estates are on the brief in this appeal. In addition to their contention that the bankruptcy judge was empowered under the Reform Act to incarcerate Martin-Trigona for civil contempt, the trustees also complain that the district court erred in granting habeas corpus relief without a hearing and without providing the trustees an opportunity to present opposing ...