United States Ex Rel. Nicholas Abate v. Benjamin Malcolm, Commissioner of Corrections, 522 F.2d 826, 2d Cir. (1975)
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Scribd Government DocsUnited States Ex Rel. Nicholas Abate v. Benjamin Malcolm, Commissioner of Corrections, 522 F.2d 826, 2d Cir. (1975)
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Scribd Government Docs522 F.
2d 826
UNITED STATES ex rel. Nicholas ABATE, PetitionerAppellee,
v.
Benjamin MALCOLM, Commissioner of Corrections, et al.,
Respondents-Appellants.
Nos. 1350, 1351, Dockets 75-2103, 75-2110.
United States Court of Appeals,
Second Circuit.
Argued Aug. 15, 1975.
Decided Aug. 25, 1975.
Supplemental Opinion Sept. 11, 1975.
Paul G. Chevigny, New York Civil Liberties Union, New York City, and
Sidney Zion, Forest Hills, N. Y. (Priest & Carson, Forest Hills, N. Y., of
counsel), for petitioner-appellee.
Jon Michael Bevilacqua, Asst. Dist. Atty., Queens County, Kew Gardens,
N. Y. (Nicholas Ferraro, Dist. Atty., of counsel), for respondentsappellants.
Before GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit
Judges.
PER CURIAM:
Petitioner, Nicholas Abate, brought a petition for a writ of habeas corpus in the
United States District Court for the Eastern District of New York, alleging that
the failure of the state court to grant him bail pending appeal without stating
reasons for denial of bail violated his constitutional rights. The District Court,
Platt, J., provided that a writ of habeas corpus would issue only if, after 15
days, the state failed to take certain action. Appellee then moved by order to
show cause for relief in the Appellate Division, Second Department. In the
meantime, a judge of this court granted a stay pending this appeal. The District
Attorney informed the Appellate Division that he had appealed the granting of
the writ to this court, and, in effect, requested the Appellate Division not to
decide appellee's motion. That motion has not been decided.
2
Since the writ was granted conditionally, we believe the interests of comity
would best be served if the Appellate Division decided petitioner's motion. We
need not decide at this time whether the conditional nature of the writ makes it
a non-appealable order, for the granting of bail by the Appellate Division would
moot that issue. We will therefore vacate our stay of Judge Platt's order, and
suggest that the Appellate Division consider the matter.
We note that we might have taken another course were it not for the fact, as
Judge Platt noted, that there is serious ground for reconsideration of the denial
of bail. The petitioner has raised a non-frivolous issue with respect to the jury
panel under Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690
(1975). The term of imprisonment is short, and a successful appeal might come
too late. Since there was no written opinion, we do not know whether the state
court considered the likelihood of ultimate reversal to be remote on the
constitutional issue presented. See N.Y. Criminal Procedure Law 510.30(2)
(b).
As Judge Platt noted, the petitioner is a 60-year-old man who lives with his
family in Queens County, owns his own business, has had three major
operations in the past two years and is now in the hospital at Rikers Island. He
has consistently appeared for trial, and at the time of sentence was free on his
own recognizance.
If the Appellate Division should consider his application favorably, the matter
will be moot and we shall not have to consider petitioner's alleged constitutional
ground, which is that the denial of bail by the state court without a statement of
reasons violates the Eighth and Fourteenth Amendments. If the decision is
adverse, the record will presumably show that there has been an exhaustion of
state remedies. 28 U.S.C. 2254.
We will not dismiss the appeal, but we will vacate the stay, pending action by
our brothers, the justices of the Appellate Division. While we are under a duty
to exercise federal power in a habeas corpus proceeding involving a state
prisoner, we hesitate to do so when his application may be granted by the state
court. This may be just such a case.
The stay is vacated. In view of the lapse of time, we suggest that we be advised
if the Appellate Division should fail to act by September 4, 1975, so that we
may decide the appeal. If the action of the Appellate Division is adverse to the
petitioner, our stay of the District Court order shall be automatically reinstated
pending our determination.
SUPPLEMENTAL OPINION
8
The Appellate Division has, since our per curiam opinion filed August 25,
1975, released the petitioner on bail pending his appeal in the New York court.
This appeal is therefore moot.
We shall accordingly vacate the judgment below and remand to the District
Court to dismiss the petition as moot.
