United States of America Ex Rel. Robert Fish v. Walter B. Martin, Warden of Attica Prison, Attica, New York and The People of The State of New York, 267 F.2d 817, 2d Cir. (1959)
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Scribd Government DocsUnited States of America Ex Rel. Robert Fish v. Walter B. Martin, Warden of Attica Prison, Attica, New York and The People of The State of New York, 267 F.2d 817, 2d Cir. (1959)
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Scribd Government Docs267 F.
2d 817
UNITED STATES of America ex rel. Robert FISH, PetitionerAppellant,
v.
Walter B. MARTIN, Warden of Attica Prison, Attica, New
York and The People of the State of New York, Appellees.
No. 346.
Docket 25446.
United States Court of Appeals Second Circuit.
Argued June 11, 1959.
Decided June 25, 1959.
Ann Thacher Clarke, New York City (Florence M. Kelley, New York
City, on the brief), for appellant.
George K. Bernstein, Asst. Atty. Gen., New York City (Louis J.
Lefkowitz, Atty. Gen. of the State of New York, Irving Galt, Asst. Sol.
Gen., and Michael Freyberg, Asst. Atty. Gen.), for appellees.
Before HINCKS and MOORE, Circuit Judges, and SMITH, District
Judge.
PER CURIAM.
Fish was convicted, in 1945, upon a plea of guilty, of murder in the second
degree in the County Court, Queens County, in New York state. In 1957, he
petitioned the County Court, Wyoming County, for a writ of habeas corpus,
claiming for the first time that a confession had been obtained from him by
coercion. The claim had not been raised in prior coram nobis proceedings. The
writ was denied, upon the ground that habeas corpus was not a proper method
for raising an issue outside the record of the criminal trial. The Appellate
Division affirmed without opinion. People ex rel. Fish v. Martin, 5 A.D.2d
1050, 174 N.Y.S. 2d 230, leave to appeal denied, 4 N.Y.2d 677, 174 N.Y.S.2d
1026, certiorari denied 358 U.S. 846, 79 S.Ct. 71, 3 L.Ed.2d 80. Petitioner then
sought a writ of habeas corpus in the District Court for the Western District of
New York, claiming that his guilty plea had been induced by knowledge that
his coerced confession was in the possession of the prosecution. Judge Morgan
denied the writ on the merits, having held that petitioner had exhausted his
state remedies.
2
We do not reach the merits, for we think it clear that the state provides a
remedy, viz., a petition for writ of error coram nobis, by which the errors
complained of may be examined by the state courts. United States ex rel.
Cuomo v. Fay, 2 Cir., 257 F.2d 438, 442, certiorari denied 358 U.S. 935, 79
S.Ct. 325, 3 L.Ed. 2d 307. Moreover, it is not clear that in the habeas
proceedings, Fish made the specific claim relied upon here, viz., that the
coerced confession induced his guilty plea. See United States ex rel. Pascal v.
Burke, D.C.E.D.Pa., 90 F.Supp. 868. The courts of New York must have an
opportunity to pass upon the claim before a federal court may undertake to pass
on it.1 For this reason
The order is affirmed.
Notes:
1
The Court wishes to express its appreciation to Ann Thacher Clarke, who as
court-appointed counsel on this appeal gave the relator able representation
