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LATZER v. ABRAMS

August 16, 1985

ROBERT W. LATZER, Petitioner against ROBERT ABRAMS, Attorney General of the State of New York, Respondent.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 On February 21, 1985, I conditionally granted a writ of habeas corpus in this matter. Latzer v. Abrams, 602 F. Supp. 1314 (E.D.N.Y. 1985). That order was based on a determination that petitioner's rights under the Sixth and Fourteenth Amendments of the United States Constitution were violated at his trial on a charge of committing sodomy in the second degree. I concluded that petitioner's conviction on that charge must be set aside. Petitioner now moves for a final unconditional order granting the petition for a writ of habeas corpus and precluding his re-trial on the charge described in the petition.

 Background

 The facts underlying this action are set forth in my earlier Memorandum and Order, 602 F. Supp. at 1314-17. That Memorandum and Order, dated February 21, 1985, provides that the "petition for a writ of habeas corpus is granted unless the state affords petitioner a new trial within sixty (60) days of the issuance of the order herein." Id. at 1321. On March 20, 1985, respondent filed a notice of appeal to the Second Circuit, but subsequently withdrew the appeal. Thereafter, on consent of respondent, I revoked an earlier order requiring petitioner to post bail as a condition of his release pending the final determination of this petition.

 On April 9, 1985, a Nassau County grand jury heard evidence against petitioner, including evidence pertaining to the crime involved in this petition. On April 11, 1985, the grand jury returned a six-count indictment against him. The second count of this indictment charged petitoner [petitioner] with committing the same crime which was the subject of this petition. Petitioner was arraigned on the new indictment on April 22, 1985, exactly sixty days after the issuance of my initial order granting the conditional writ. He entered a plea of not guilty to all counts.

 Discussion

 This motion presents two related issues. First, whether the order granting the conditional writ required that petitioner actually be re-tried within the sixty day period to avoid issuance of the final writ, or whether it was sufficient that petitioner was only arraigned within the prescribed period. Second, whether the final writ should include an order precluding the re-trial of petitioner on the charge addressed in the petition (i.e., the second count of the new indictment).

 1. The Sixty Day Period

 In issuing a writ of habeas corpus, a federal court has the power to "dispose of the matter as law and justice require." 28 U.S.C. § 2243; Irvin v. Dowd, 366 U.S. 717, 729, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). There is no absolute requirement that the court delay issuance of a final writ until after the state has been afforded a specific period of time in which to re-try the petitioner. the Supreme Court has indicated, however, that the state should be allowed a "reasonable time" for conducting a re-trial. Irvin, 366 U.S. at 729. Accordingly, most courts allow some time between thirty and sixty days for re-trial, P. Sokol, Federal Habeas Corpus, § 15.1, at 132 (1969), though longer periods are occasionally permitted. See, e.g., Tifford v. Wainwright, 588 F.2d 954, 957 (5th Cir. 1979) (ninety days); Bailey v. Henslee, 309 F.2d 840, 842 (8th Cir. 1962) (en banc) (nine months).

 With these considerations in mind, I conditioned the issuance of the writ in the present case on the event that petitioner was not "afford [ed]" a new trial within sixty days. Respondent now argues that the arraignment of petitioner on the sixtieth day was sufficient to "afford" petitioner a new trial within the prescribed period. While the order may not have been the epitome of clarity, respondent's interpretation flies in the face of the order's intent to insure that petitioner was either promptly retried or relieved of the strictures imposed by his constitutionally flawed conviction. The order was intended to mean that petitioner should be brought to trial within sixty days, and will be so applied by the Court.

 If respondent had any doubts as to the meaning of the order, he could have sought clarification from the Court, or avoided any potential problems by bringing petitioner to trial before the expiration of the sixty day period. Alternatively, respondent could have applied for an extension of the time for re-trial. Instead, respondent chose to file a notice of appeal, withdraw the appeal, and then seek the indictment of petitioner on five new counts, as well as re-indictment on the count in question. In light of the failure to bring petitioner to trial within the prescribed period and respondent's election not to pursue the options discussed above, I am constrained to conclude that the final writ of habeas corpus must be granted.

 2. The Remedy

 The far more difficult question is what relief, if any, should be granted to petitioner at the present time. Historically, the writ of ...


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