306 F.

2d 417

UNITED STATES ex rel. Franklin LaNEAR, RelatorAppellant,

v.
Hon. J. Edwin LaVALLEE, as Warden of Clinton State Prison,
Dannemora, New York, Respondent-Appellee.
No. 375, Docket 27451.

United States Court of Appeals Second Circuit.

Argued June 12, 1962.
Decided July 12, 1962.

Leon B. Polsky, Anthony F. Marra, New York City, for relator-appellant.

Mortimer Sattler, New York City (Louis J. Lefkowitz, Atty. Gen., of the
State of New York), for respondent-appellee.
Before FRIENDLY, KAUFMAN and HAYS, Circuit Judges.
FRIENDLY, Circuit Judge.

LaNear was convicted of burglary in the second degree by the County Court of
Bronx County, N.Y., in 1950. He makes no complaint as to the proceedings
leading up to that conviction. If that had been his first offense, punishment
would have been 'for a term not exceeding fifteen years,' with no minimum
stipulated, N.Y.Penal Law, McKinney's Consol.Laws, c. 40, 407(2). However,
in 1938, LaNear had been convicted of burglary, on a plea of guilty, in the
Circuit Court of Jackson County, Missouri, and served his sentence. New York
Penal Law, 1941(1), required that, because of this earlier judgment, he must be
sentenced, on his 1950 conviction in New York, 'to imprisonment for an
indeterminate term, the minimum of which shall be not less than one-half of the
longest term prescribed upon a first conviction, and the maximum of which
shall be not longer than twice such longest term.' The judge in Bronx County
Court sentenced him to an indeterminate term of fifteen to thirty years.

In this habeas corpus proceeding in the Northern District of New York where

he is confined, LaNear alleged that at the time he pleaded guilty in Jackson

County, Missouri, he was less than 17 years old; that he had completed only the
fourth grade and was barely literate; that, prior to arraignment, he had been
confined for over a month and had not been advised of the precise nature of the
charge against him; that he was destitute and thus unable to hire a lawyer, as
the prosecutor advised him he might; that the court did not inquire of him with
respect to the assignment of counsel; and that the Missouri conviction thus was
void. Except for a statement that the New York Commissioner of Correction
had refused to allow him to appear in Missouri in a proposed proceeding to
vacate his conviction there, relator made no allegation of any attempt to take
action in that state. New York, properly, has raised no objection on the ground
that the maximum term for which LaNear could have been sentenced as a first
offender has not expired, see the careful review of our decisions by Judge
Kaufman in United States ex rel. Foreman v. Fay, 184 F.Supp. 535, 538-539
(S.D.N.Y.1960). It does claim the petition to be defective for failure to show
exhaustion of Missouri remedies.
3

Relying on opinions of this Court1 which 'at least by inference, indicated that
the requirement of the exhaustion of state court remedies includes all
reasonable efforts of a state court prisoner to obtain relief in the court of a sister
state wherein it is claimed that the requirement of due process has been
violated,' Chief Judge Brennan denied the petition, but granted a certificate of
probable cause. The conclusion the judge drew from language in the cited
opinions was altogether natural, although in none was relief in fact denied for
failure by the prisoner to take proceedings in the foreign state. We have
concluded that no such requirement exists. Consequently we do not need to
consider relator's further contention that Missouri has no remedy that can be
availed of without his presence, or his alternative claim that New York has the
burden of showing the existence of such a remedy and has not discharged it.

28 U.S.C. 2254 directs that 'An application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted the remedies
available in the courts of the State, or that there is either an absence of available
State corrective process or the existence of circumstances rendering such
process ineffective to protect the rights of the prisoner.' As a matter of language
the phrases 'the courts of the State' and 'State corrective process' would seem
quite clearly to refer to the State pursuant to the judgment of whose courts a
petitioner is being held in custody, as do the phrases 'the courts of the State' and
'the law of the State' in the following paragraph of the section.2 If that be so,
LaNear has met the statutory requirement. He is in custody pursuant to the
judgment of a court of New York, not of Missouri, and it is common ground

that New York provides no method for testing the validity of convictions by
other sovereigns used as a basis for New York sentences under its multiple
offender law, People v. McCullough, 300 N.Y. 107, 89 N.E.2d 335 (1949)
(Federal conviction); United States ex rel. Savini v. Jackson, 250 F.2d 349 (2
Cir.1957).3
5

When we go behind the words of 2254 to the sense of the requirement of

exhaustion, we come to the same conclusion. It has been said that the
exhaustion doctrine 'simply told the prisoner, with entire reasonableness, that if
the doors of the state courts and of the federal courts were both currently open
to him, he ought to try the state doors first,' Hart, Foreword to The Supreme
Court, 1958 Term, 73 Harv.L.Rev. 84, 113 (1959). The policy behind this
teaching, namely, that the state whose action is under attack should have an
opportunity to consider this before Federal intervention, is satisfied if the
doctrtine is limited to the courts of the state which is confining the prisoner; it
does not demand a further journey thr3ugh the doors of the courts of another
state which is not. A determination in Federal habeas corpus that the out-state
judgment was void will not bind that state if the issue should ever become
important there. It will simply determine that the judgment is an impermissible
basis for New York's confining the prisoner longer than New York would
otherwise have done. To the extent that such a determination inflicts an
indignity on the foreign state we suspect the state would much rather bear this
than take the time of its courts and prosecutors in usually fruitless proceedings
concerning the validity of a sentence long since served.4

Only in form is LaNear's complaint over what Missouri allegedly did; in every
practical sense his grievance is over what New York is doing with what
Missouri did. Missouri's allegedly unconstitutional action against him had spent
its force until New York made it a legal basis for increased sanctions of its
own. In earlier days, when Federal habeas corpus was thought to be limited to
cases where the confinement was at the hands of a court or other body lacking
'jurisdiction,' there might have been a substantive question, quite apart from
'exhaustion,' whether a complaint like LaNear's stated a claim. But the modern
concept that the writ 'extends also to those exceptional cases where the
conviction has been in disregard of the constitutional rights of the accused, and
where the writ is the only effective means of preserving his rights,' Waley v.
Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302 (1942), see Hart,
supra, pp. 103-106, includes a claim that New York is disregarding a prisoner's
constitutional rights if it takes account of a conviction, obtained in violation of
fundamental requirements, not merely as a datum bearing upon sentence, which
the judge could consider in the light of all circumstances affecting its weight,
but as a requirement compelling a longer sentence ex proprio vigore. In any

event we crossed that bridge long ago, see cases cited in footnote 1. That the
violation of due process in such cases is by New York, not by the foreign state,
is neatly demonstrated by the decisions permitting a prisoner to show that a
Canadian conviction used as a basis for a multiple offender sentence was
obtained by methods that would offend the Fourteenth Amendment if the
judgment had been rendered by a state court, United States ex rel. Dennis v.
Murphy, 265 F.2d 57 (2 Cir.1959); United States ex rel. Foreman v. Fay, 184
F.Supp. 535 (S.D.N.Y.1960). The alleged violation of constitutional right thus
being New York's and New York having provided no method for questioning
an out-state conviction used as a basis for a multiple-offender sentence, a New
York prisoner challenging the validity of such a conviction on constitutional
grounds may proceed directly in a Federal court.5 As indicated by Judge
Hincks in the Savini opinion, 250 F.2d at 354-355, we are aware of the heavy
burden this places on New York; but 'to the extent that any State maxes its
penal sanctions depend in part on the fact of prior convictions elsewhere,
necessarily it must assume the burden of meeting attacks on the
constitutionality of such prior convictions.'
7

It is true that the decisions of this Court cited by the District Judge, see footnote
1, seem to have assumed that proceedings must be taken in the foreign state
(although not in a foreign country, see the Dennis and Foreman cases, supra) if
that were possible, although all of them concluded that no such remedies were
available under the circumstances presented. But that pattern was set by United
States ex rel. Turpin v. Snyder, 183 F.2d 742 (2 Cir.1950), where the relator
had attempted coram nobis in Wisconsin and, relying on that state's refusal to
take jurisdiction, did not argue that resort to it had not been necessary. The
Brief filed by assigned counsel (Lloyd F. MacMahon, Esq., as he then was) for
the relator in United States ex rel. Smith v. Jackson, 234 F.2d 742 (2 Cir.1956),
raised the latter question, but we did not decide it, upholding his alternative
argument that Virginia had disclaimed jurisdiction. In United States ex rel.
Savini v. Jackson, 250 F.2d 349 (2 Cir.1957), and United States ex rel. Moore
v. Martin, 273 F.2d 344 (2 Cir. 1959), cert. denied, 363 U.S. 821, 80 S.Ct.
1262, 4 L.Ed.2d 1518 (1960), the relators stood upon their proved inability to
proceed in the foreign state so long as New York prevented them from going
there; in United States ex rel. Farnsworth v. Murphy, 254 F.2d 438 (2 Cir.)
rev'd on other grounds, 358 U.S. 48, 79 S.ct. 76, 3 L.Ed.2d 46 (1958), the
relator relied on the many proceedings he had taken in Maryland.

Other decisions, not cited by the parties, come closer to having decided the
issue in the direction for which the Attorney General contends, but not to the
extent that, unanimous as we are, we feel bound to follow such lead as they
give or to refer the issue for consideration by the full court. In United States ex

rel. Morgan v. Martin, 202 F.2d 67, 68 (2 Cir.), cert. denied, 345 U.S. 977, 73
S.Ct. 1126, 97 L.Ed. 1392 (1953), the alleged unconstitutional conviction was
in the Federal court for the Northern District of New York. Judge Augustus N.
Hand said that since relator 'has an available remedy through a writ of error
coram nobis in the United States District Court for the Northern District,' a
decision made, in the same opinion, on the companion appeal in United States
v. Morgan, aff'd, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), 'we can see
no reason for discussing whether he might also avail himself of a writ of habeas
corpus in the Western District,' citing the Turpin case; because of this and the
lack of a record the appeal from a denial of habeas corpus by the Western
District was dismissed. The statement in United States ex rel. Farnsworth v.
Murphy, 207 F.2d 885, 887 (2 Cir.1953), that relief would not have been
granted in Turpin had it not 'appeared that the Wisconsin courts had denied all
jurisdiction over a sentence by any available means,' was unnecessary to the
decision there, which rested on the ground, whether correct or not that
Farnsworth was precluded by rulings against him on the merits in foreign
coram nobis. In United States ex rel. Atkins v. Martin, 228 F.2d 188 (2
Cir.1955), we did rely on failure to exhaust Florida remedies; but this was only
an alternative ground and the meager pro se brief filed by the relator did not
contend that such exhaustion was not required. See also Davis v. Jackson, 246
F.2d 268 (2 Cir.1957); cf. United States ex rel. Cutrone v. Fay, 289 F.2d 470 (2
Cir.1961). The issue here decided was sharply raised in United States ex rel.
Frederick v. Martin, 282 F.2d 90 (2 Cir.1960), but Frederick died before the
appeal was argued.
9

The order denying LaNear's petition for failure to show exhaustion of Missouri
remedies is reversed, with directions to conduct a hearing, see Common-wealth
of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100
L.Ed. 126 (1956); People ex rel. Bowers v. Fay, 171 F.Supp. 558
(S.D.N.Y.1958), aff'd, United States ex rel. Bowers v. Fay, 266 F.2d 824 (2
Cir.1959).

United States ex rel. Turpin v. Snyder, 183 F.2d 742 (2 Cir. 1950); United
States ex rel. Smith v. Jackson, 234 F.2d 742 (2 Cir. 1956); United States ex
rel. Savini v. Jackson, 250 F.2d 349 (2 Cir. 1957); United States ex rel.
Farnsworth v. Murphy, 254 F.2d 438 (2 Cir.), rev'd on other grounds, 358 U.S.
48, 79 S.Ct. 76, 3 L.Ed.2d 46 (1958); United States ex rel. Moore v. Martin,
273 F.2d 344 (2 Cir. 1959), cert. denied, 363 U.S. 821, 80 S.Ct. 1262, 4
L.Ed.2d 1518 (1960)

'An applicant shall not be deemed to have exhausted the remedies available in

the courts of the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure, the question
presented.'
3

People v. McCullough was a coram nobis proceeding long after sentence and
thus did not rule specifically on the right of a defendant to attack a foreign
conviction on constitutional grounds at the time of sentence. Cf. Gayes v. New
York, 332 U.S. 145, 149 fn. 3, 67 S.Ct. 1711, 91 L.Ed. 1962 (1947). But the
rationale of the opinion would cover the latter situation; we have said broadly
that 'under New York law the New York courts will not entertain an attack on a
judgment of conviction entered in another state,' United States ex rel. Savini v.
Jackson, 250 F.2d at 351; and New York does not here contend to the contrary,
see People v. Coleman, 283 App.Div. 875, 129 N.Y.S.2d 199 (2d Dept. 1954);
People v. Toler, 29 Misc.2d 384, 204 N.Y.S.2d 306 (suffolk County Ct., 1960);
but see People v. Eckert, 198 Misc. 626, 102 N.Y.S.2d 676 (Livingston County
Ct., 1950); People v. Kadio, 12 Misc.2d 901, 177 N.Y.S.2d 456 (Schenectady
County Ct., 1958). We therefore have no occasion to consider whether if it had
been possible for LaNear to question the validity of his Missouri conviction at
the time of his New York sentence, his failure to have done so would bar him
under 28 U.S.C. 2254, cf. Hart, Foreword to The Supreme Court, 1958 Term,
73 Harv.L.Rev. 84, 113 (1959); Reitz, Federal Habeas Corpus: Impact of an
Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1364-1365 (1961)

A letter from a judge of the Circuit Court of Jackson County, Missouri,

appended to the Attorney General's brief, states that 'Both the judge, who
sentenced the defendant, and the court reporter at the time, are deceased.'

Nothing herein is meant to cast doubt on the proposition that a prisoner may
seek relief, by coram nobis or other appropriate remedy, from the court that
rendered the allegedly invalid sentence, if he chooses to do so because of the
greater availability of evidence or any other reason