United States District Court, Eastern District of New York
September 28, 1990
JOHN PULASKI, PETITIONER,
MARRON HOPKINS, WARDEN, QUEENS HOUSE OF DETENTION, RESPONDENT.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
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
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 been denied
with no reasons given, no further state relief is available.
Thus, petitioner has no state remedies to exhaust.
II. Denial of bail pending appeal.
Petitioner contends that the denial of his application for bail
pending appeal was arbitrary and unreasonable. Petitioner asserts
that on this record, denial of bail was necessarily arbitrary and
unreasonable and would be so even if the Appellate Division had
articulated reasons for the denial. Thus, without specifically
using the words, petitioner is asserting that his due process
rights are being violated because there is no rational basis for
the denial of his application.
Although there is no absolute federal constitutional right to
bail pending appeal, once a state makes provisions for such
bail,*fn1 the Eighth and Fourteenth Amendments require that it
not be denied arbitrarily or unreasonably. Finetti v. Harris,
609 F.2d 594, 599 (2d Cir. 1979); Brown v. Wilmot,
572 F.2d 404, 405 (2d Cir. 1978); Danylocke v. Dalsheim, 662 F. Supp. 961
(S.D.N.Y. 1987), aff'd, 842 F.2d 1287 (2d Cir. 1988).*fn2
While federal habeas corpus is an appropriate procedure for
seeking relief from arbitrary and unconstitutional denial of
bail, "federal courts do not . . . sit as appellate courts in the
granting or withholding of bail pending appeal". Finetti, 609
F.2d at 600.
In Finetti, the Second Circuit was faced with the question of
whether the denial of bail pending appeal without a statement of
reasons is per se arbitrary or whether the denial of bail
pending appeal is arbitrary "only if no rational basis exists in
the record to support the denial". Id. In that case, the
Circuit Court declined to find a presumption of arbitrariness
where the state courts do not articulate reasons for denial of
bail. Rather, it found that state court judgments facing
collateral attack through federal habeas corpus review carry a
presumption of regularity. Johnson v. Zerbst, 304 U.S. 458,
468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (1938). This presumption,
the Second Circuit held, "may be overcome; but the [petitioner]
bears the burden of showing that there is no rational basis in
the record for the denial of bail." Finetti, 609 F.2d at 601.
The Circuit Court then reviewed petitioner's record and
dismissed the petition. While the Court recognized the
"delicately calibrated balancing" between concern for the
petitioner and the protection of the community, it stopped short
of saying that the denial of petitioner's bail application was
the only conclusion that could be supported by the record. Id.
at 602. The Court concluded that since there existed "a rational
basis" for the decision on the record, the decision passed
In Danylocke, supra, petitioner alleged that the state's
decision to deny his application for bail pending appeal failed
to articulate a rational basis for the denial, and, therefore,
violated his Fifth, Eighth, and Fourteenth Amendment rights. The
District Court refused to review the record and dismissed the
petition. The court found that while petitioner's allegation of a
lack of rational basis mimicked the Finetti holding, it added
nothing of substance to rebut the presumption of validity that
federal courts accord state court decisions.
In the instant case, petitioner avoids mimicking the Finetti
holding by alleging a lack of rational basis for the denial of
bail, irrespective of whether reasons were or were not
articulated. However, similar to Danylocke, petitioner has not
alleged either bias or prejudice, whether racial, religious, or
otherwise, as a basis of his constitutional claim. Nor has he
alleged being denied a fair hearing. Instead, petitioner offers
his analysis of the record, speculating as to reasons the trial
court could have given, had it chosen to do so, as to why bail
was denied. For every such "reason", petitioner provides an
alternative basis upon which bail might have been granted, again,
had the trial court chosen to do so.
This court declines to engage in such speculation, and finds
that petitioner has failed to make even a prima facie showing
that no rational basis exists for Judge Yachnin's decision. This
court will not review the record in search of a constitutional
violation where petitioner has alleged none.
The petition for a writ of habeas corpus is denied in its
entirety, with prejudice.