United States Ex Rel. White v. Martin, 197 F.2d 147, 2d Cir. (1952)
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Scribd Government DocsUnited States Ex Rel. White v. Martin, 197 F.2d 147, 2d Cir. (1952)
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Scribd Government Docs197 F.
2d 147
UNITED STATES ex rel. WHITE,
v.
MARTIN.
No. 258, Docket 22371.
United States Court of Appeals Second Circuit.
Argued May 12, 1952.
Decided May 29, 1952.
Harold K. White, pro se.
Nathaniel L. Goldstein, Atty. Gen. of the State of New York, Vincent A.
Marsicano, Asst. Atty. Gen., of counsel, for respondent-appellee.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
PER CURIAM.
The relator, Harold K. White, was indicted and convicted in Steuben County,
New York, of the crime of sodomy and confined in the State Prison at Attica,
New York. Shortly thereafter, he moved to set aside his conviction on the
ground that women were intentionally excluded from the grand jury which
indicted him. This motion was heard before a judge of the New York Supreme
Court and denied. That decision was affirmed by the Appellate Division, Fourth
Department, People v. White, 278 App.Div. 750, 104 N.Y.S.2d 798, without
opinion, and, on May 17, 1951, the Court of Appeals denied an application for
leave to appeal. White then petitioned the United States District Court for the
Western District of New York for a writ of habeas corpus, which was denied on
September 6, 1951. On September 24, 1951, the district court issued a
certificate of probable cause for appeal from its order, see 28 U.S.C.A. 2253.
A federal court has no power to grant a writ of habeas corpus on behalf of a
state prisoner unless he has exhausted the remedies available in the state courts.
28 U.S.C.A. 2254. Since the relator did not petition the United States
Supreme Court for a writ of certiorari from the denial of his appeal by the New
York Court of Appeals, it is clear that he has not satisfied that requirement. Darr
v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. Moreover, it would
appear that there is still a remedy available in the New York courts which the
relator has not yet attempted to invoke, let alone exhausted. See Bojinoff v.
People, 299 N.Y. 145, 85 N.E.2d 909.
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