Federal Appeal on Habeas Corpus Dismissal
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UNITED STATES of America ex rel. James V. TANGREDI,
Petitioner-Appellant,
v.
Walter M. WALLACK, as Warden of Wallkill State Prison,
Wallkill, New York, Respondent-Appellee.
No. 401, Docket 29411.
United States Court of Appeals Second Circuit.
Argued March 30, 1965.
Decided April 1, 1965.
Philip Brown, New York City, for petitioner-appellant.
Brenda Soloff, Deputy Asst. Atty. Gen., New York City (Louis J.
Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First
Asst. Atty. Gen., Lillian Z. Cohen, Deputy Asst. Atty. Gen., on the brief),
for respondent-appellee.
Before LUMBARD, Chief Judge, and SWAN and KAUFMAN, Circuit
Judges.
PER CURIAM.
The petitioner, James V. Tangredi, appeals from an order of the United States
District Court for the Southern District of New York dismissing, without a
hearing, his application for a writ of habeas corpus. He contends that his
present confinement on a state court conviction for second degree manslaughter
is unlawful because (1) he was indicted for conspiracy but convicted of
manslaughter, (2) allegedly involuntary admissions were introduced at his trial,
and (3) prejudicial publicity rendered the trial unfair.
We agree with the District Court that the indictment charged the substantive
offense rather than a conspiracy. See People v. Lieberman, 3 N.Y.2d 649, 171
N.Y.S.2d 73, 148 N.E.2d 293 (1958). And since the crime charged was within
the state court's jurisdiction, federal habeas corpus is not available to test the
sufficiency of the indictment. Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69
L.Ed. 1036 (1925), Kimbro v. Bomar, 333 F.2d 755 (6 Cir. 1964). We therefore
affirm the District Court's order, insofar as it relates to this claim, on the merits.
3
Turning to the admissibility of the incriminating statements, our recent opinion
in United States ex rel. Wynn v. Wilkins, 342 F.2d 777 (2 Cir. 1965), is
controlling. Where, as here, the disputed issue of voluntariness was
impermissibly submitted directly to the trial jury, see Jackson v. Denno, 378
U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), federal habeas corpus will not
lie if the petitioner has not exhausted his presently available state remedy, by
way of coram nobis, to retry that issue before a state judge in compliance with
the Jackson precepts. See People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838,
204 N.E.2d 179 (1965). Accordingly, we affirm dismissal of the premature
application for federal relief on this ground, but without prejudice to Tangredi's
right to renew his petition in the District Court, as to this issue, should relief be
denied in the New York state courts.
Similarly, coram nobis may be available to test petitioner's contention that his
trial was tainted by unfair prejudicial publicity. See People v. La Marca, 4
N.Y.2d 925, 175 N.Y.S.2d 167, 151 N.E.2d 353 (1958). As we indicated in
United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2 Cir. 1964), 'even
if there were some doubt as to the availability of relief in the New York courts,
we still would give its courts the first chance to review their alleged errors so
long as they have not authoritatively shown that no further relief is available.'
Therefore, we affirm dismissal of the petition with respect to this issue for
failure to exhaust presently available state remedies, 28 U.S.C. 2254, also with
the caveat that this disposition is without prejudice to renewal in the District
Court should relief be denied in the state courts.
