United States Ex Rel. Kalan v. Martin, Warden, 205 F.2d 514, 2d Cir. (1953)
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Scribd Government DocsUnited States Ex Rel. Kalan v. Martin, Warden, 205 F.2d 514, 2d Cir. (1953)
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Scribd Government Docs205 F.
2d 514
UNITED STATES ex rel. KALAN,
v.
MARTIN, Warden.
No. 256, Docket 22673.
United States Court of Appeals Second Circuit.
Argued May 15, 1953.
Decided June 23, 1953.
Bert E. Kalan, relator-appellant, per se.
Nathaniel L. Goldstein, Atty. Gen., of New York, for respondent. Wendell
P. Brown, Sol. Gen., Albany, Samuel A. Hirschowitz, and Vincent A.
Marsicano, Asst. Attys. Gen., of counsel.
Before CHASE, CLARK and FRANK, Circuit Judges.
PER CURIAM.
The relator-appellant was found guilty by a jury of the crime of grand larceny,
second degree, in the County Court of Queens County, New York, and was
sentenced to a term of from five to ten years imprisonment in the Attica Prison
at Attica, New York, which he is presently serving.
The basis of his petition for this writ is his contention that his acquittal on one
count of the indictment charging the issuance of a post-dated check prevented
his lawful conviction on other courts charging larceny of money obtained in the
transaction involving the check; and that he was denied due process because
the Appellate Division of the New York Supreme Court, Second Department,
after he had filed a notice of appeal from the judgment against him, denied his
application for leave to prosecute his appeal without printing the record and his
brief, and dismissed his appeal.
Presumably the denial of his application was because the appellant failed to
show just cause for granting the special relief he sought. Nothing to the
contrary now appearing, the denial but required him to perfect his appeal in the
usual manner and he has failed to carry his burden to prove that he was denied
due process of law. Schechtman v. Foster, 2 Cir., 172 F.2d 339.
4
Furthermore, his bare assertion in what is entitled a supplemental memorandum
that he was refused permission by the state court to appeal from the dismissal
of a subsequent writ of error coram nobis 'as a poor person' is, for the same
reason, insufficient to show any denial of due process and to discharge his
burden to prove that he has been deprived of a constitutional right.
Since he did not by appeal exhaust his state remedies, the denial of his petition
for this writ was without error. United States ex rel. White v. Martin, 2 Cir.,
197 F.2d 147; United States ex rel. Steele v. Jackson, 2 Cir., 171 F.2d 432.
Order affirmed.
