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September 28, 1990


The opinion of the court was delivered by: Glasser, District Judge:


This is a pro se petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court denies the petition in its entirety.

On October 30, 1989, petitioner was convicted in the County Court of Nassau County of attempted grand larceny in the third degree (N.Y.Penal Law § 110.00, 155.30 (McKinney 1989)), possession of burglar's tools (N.Y.Penal Law § 140.35 (McKinney 1989)), and criminal mischief in the fourth degree (N.Y.Penal Law § 145.00 (McKinney 1989)) after a jury trial before Judge Harrington. Petitioner was sentenced as a recidivist felon to a definite term of one year imprisonment on the possession and criminal mischief charges and to an indeterminate term of two to four years on the grand larceny charge. Petitioner timely filed a Notice of Appeal which is pending as of this writing.

On November 8, 1989, petitioner's application in the Special Term Part of the New York Supreme Court, Nassau County, for a stay and bail pending appeal pursuant to New York Criminal Procedure Law § 460.50 was denied without opinion by Judge Yachnin. Petitioner then filed the instant petition for a writ of habeas corpus, alleging that the denial of his application for bail pending appeal of his state court conviction was arbitrary and unreasonable, and violative of his constitutional rights. Petitioner did not seek further state court relief, claiming that none was available to him.


I. Exhaustion of state remedies.

Before this court can consider the petition on the merits, a determination must be made as to whether petitioner has exhausted his state court remedies. A state prisoner who petitions for a writ of habeas corpus under 28 U.S.C. § 2254 first must present to the state court "the same claim that he urges upon the federal courts." United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972) (emphasis omitted). The Second Circuit has consistently held that the exhaustion requirement is not a "mere formal hurdle placed in the way of meritorious claims, but an essential element of federalism in the administration of criminal justice." Fielding v. Le Fevre, 548 F.2d 1102, 1106 (2d Cir. 1977). Unless a state prisoner first gives the state courts an "opportunity to apply controlling legal principles to the claims asserted," Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), then dismissal by the federal courts is required. Wilson v. Fogg, 571 F.2d 91, 92 (2d Cir. 1978) (quoted in Finetti v. Harris, 609 F.2d 594 (2d Cir. 1979)).

Under New York law, only one application for bail pending appeal can be made. (N.Y.Crim.Proc.Law § 460.50, subd. 3 (McKinney 1990)). Relief is discretionary, and there is no statutory provision permitting direct appeal from its denial. Thus, denial of bail pending appeal is not appealable as of right. See People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 500, 255 N.E.2d 552, 555, 307 N.Y.S.2d 207, 210 (1969); People ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267, 268 (1st Dept), motion for leave to appeal withdrawn, 17 N.Y.2d 422, 216 N.E.2d 32, 268 N.Y.S.2d 1028 (1966).

In Brown v. Wilmot, 572 F.2d 404 (2d Cir. 1978), petitioner's application for bail pending appeal was denied. No reasons were given. Petitioner filed a federal habeas corpus petition which was dismissed, without prejudice. The Second Circuit found that, absent the filing of a state habeas corpus petition, petitioner had failed to exhaust state remedies. It declined to second guess what constitutional issues the New York courts would or would not entertain in such a proceeding, reasoning that "[e]ven if there was some doubt as to the availability of relief in the New York courts, we still would give its courts the first chance to review their alleged errors so long as they have not authoritatively shown that no further relief is available." Brown, 572 F.2d at 406 (quoting United States ex rel. Bagley v. La Vallee, 332 F.2d 890, 892 (2d Cir. 1964)).

In Finetti v. Harris, supra, petitioner's application for bail pending appeal was also denied. As with petitioner in Brown, supra, no reasons were given for the denial. Petitioner attempted to file a state habeas corpus petition, but the Clerk of the Appellate Division refused to accept it. In a letter to petitioner's attorney, the Clerk declared that "[a] second application for bail pending appeal may not be made under the guise of a habeas corpus application." Finetti v. Harris, 609 F.2d at 596 n. 3. Since the Clerk's "decision" was apparently not appealable, see People ex rel. Wilkes v. Fay, 27 A.D.2d 860, 278 N.Y.S.2d 581 (2nd Dept. 1967), the federal habeas court held that all avenues of state review of the bail denial had been foreclosed to Finetti. Finetti v. Harris, 460 F. Supp. 1069, 1071 (S.D.N.Y. 1978). The Second Circuit affirmed, Finetti v. Harris, 609 F.2d 594, reaffirming it's exhaustion of state remedies requirement. However, the Circuit Court rejected the state's contention that petitioner should be required to commence a collateral proceeding to compel the clerk to accept the petition. The Court noted that such a requirement might or might not provide relief, would result in considerable delay, and might not produce any benefits "`in terms of federal-state comity or the efficient administration of justice.'" Finetti, 609 F.2d at 598 (quoting Emmett v. Ricketts, 397 F. Supp. 1025, 1047 (N.D.Ga. 1975)). "Indeed, to require [petitioner] to pursue such remedies, as Judge Friendly has suggested, might `invite the reproach that it is the prisoner rather than the state remedy that is being exhausted.'" Finetti, 609 F.2d at 598, (quoting United States ex rel. Kling v. La Vallee, 306 F.2d 199, 203 (2d Cir. 1962) (Friendly, J., concurring)).

More recently, in Danylocke v. Dalsheim, 662 F. Supp. 961 (S.D.N.Y. 1987), aff'd, 842 F.2d 1287 (2d Cir. 1988), petitioner was denied bail pending appeal without explanation. In dismissing petitioner's subsequent state habeas corpus action, Honorable Milton Mollen, then Presiding Justice of the Appellate Division, Second Department, noted that "habeas corpus is not an appropriate vehicle to review [denial of bail pending appeal]." Id. at 962. Petitioner then sought federal habeas corpus review, asserting that he had exhausted his state remedies. The District Court for the Southern District agreed. Id. It rejected respondent's argument that petitioner, by failing to appeal to the New York Court of Appeals, had not exhausted his remedies. The court reasoned that because petitioner had no appeal from the dismissal of his state habeas corpus petition as of right, certiorari by the Court of Appeals "almost certainly" would not be forthcoming. Id. The court noted that to force petitioner to appeal would invite the same "exhaustion of prisoner" criticism as noted in Finetti. Id.

In the instant case, petitioner's application for bail pending appeal was denied, with no reasons given. Petitioner now seeks federal habeas corpus relief without having sought similar relief in the state courts. Petitioner argues that to compel him to do so would be "clearly futile" in light of Finetti and Danylocke. (Petition for Habeas Corpus, at 3). Respondent, on the other hand, urges this court to dismiss the petition because petitioner has not "fairly presented" his federal claims to the state courts, see Daye v. Attorney General of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), cert denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), and thus, "available" state remedies have not been exhausted. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Respondent cites Brown for the proposition that where bail pending appeal has been denied, petitioner must seek habeas relief in the state courts before filing a federal habeas petition. However, this argument necessarily assumes that state habeas corpus relief is "available" to petitioner in these circumstances.

Dismissal of a federal habeas corpus petition is appropriate to enable petitioner to exhaust state remedies "so long as [the state courts] have not authoritatively shown that no further relief is available". Brown, 572 F.2d at 406. Although the New York Court of Appeals has not yet passed on the issue, in view of the New York Appellate Division's ruling, see Danylocke, supra, New York courts have "authoritatively shown" that where petitioner's post conviction bail application has ...

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