that suggestion. However, on October 16, 1957, petitioner successfully moved the trial court for correction of sentence imposed under each of the counts of the indictment of which he stood convicted. No further steps were taken by petitioner until February 14, 1958, when, upon an affidavit of poverty, he unsuccessfully applied to the assignment Judge of the Superior Court of New Jersey, then presiding in Morris County, for assignment of counsel to represent petitioner in proceedings which he contemplated to review his conviction upon the contention that the conviction resulted from perjured testimony. Judge (now Justice) Hall in denying this latest application, on February 27, 1958, found that it involved the same charge which petitioner had made before a judge of the County Court; that the charge had been investigated by the Prosecutor, and had been adjudicated, adversely to petitioner, by the trial Court's order of September 29, 1955 denying the motion for new trial based upon the same contentions. From the order denying his motion for assignment of counsel petitioner sought leave to appeal in forma pauperis to the Appellate Division of the Superior Court of New Jersey, which on March 26, 1958, refused to grant such leave because petitioner was in possession of sufficient funds with which to prosecute the appeal (see footnote 1, ante). Apparently accepting this disposition of his application, petitioner made a new approach in the form of a petition to the Assignment Judge of the Law Division of the Superior Court of New Jersey for a writ of habeas corpus. In that petition he contended that (1) he was confined to jail for eleven months before being tried; (2) a witness for the State gave false testimony against him; (3) 'he was denied his witnesses'; (4) he was denied representation of effective counsel; (5) he was dept in solitary confinement and brutally beaten while awaiting trial; (6) the trial transcript was withheld from him. That petition was duly referred to the Judge of the County Court, counsel was assigned to represent petitioner, and a hearing was held, at which petitioner and his witness Sykes testified as did also the Warden of the Jail in which petitioner had been confined awaiting trial, and the Captain of Detectives in the Morris County Prosecutor's office, and the Chief of said detectives. The petition for habeas corpus was denied by order of September 22, 1958. From this order petitioner noticed an appeal on October 4, 1958. His petition for assignment of counsel was denied by the Appellate Division on November 25, 1958, but the same Court ordered, on February 21, 1959, that a transcript of the habeas corpus proceedings be furnished to petitioner at County expense.
Although not set forth in his petition, or in his brief or appendix thereto, the order of the Morris County Court denying Faiola's petition for habeas corpus was affirmed by the Appellate Division of the Superior Court of New Jersey on September 18, 1959, as appears from the certified copy of the mandate on affirmance in that case. Faiola next petitioned the Supreme Court of New Jersey for leave to appeal from the decision of the Appellate Division of the Superior Court of New Jersey. The Supreme Court treated the petition for leave to appeal as a petition for certification, and denied the same on the merits by order filed December 14, 1959. Faiola's petition to the Supreme Court of the United States for a writ of certiorari was denied on April 18, 1960. Faiola v. New Jersey, 362 U.S. 956, 80 S. Ct. 870, 4 L. Ed. 2d 872.
It is, of course, beyond argument that the denial of petitioner's petition for writ of certiorari by the Supreme Court of the United States 'has no legal significance whatever bearing on the merits' of his present claims, Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 601, 94 L. Ed. 761, but merely constitutes the last step in fulfillment of the requirement of exhaustion of remedies prescribed by 28 U.S.C. § 2254 for cases involving persons in custody pursuant to the judgment of a State court. See United States ex rel. Smith v. Baldi, 3 Cir., 1951, 192 F.2d 540, certiorari denied 344 U.S. 561, 73 S. Ct. 391, 97 L. Ed. 549. However, as pointed out in the Baldi case, 192 F.2d at page 544, neither the Circuit Court of Appeals nor the District Court is 'an appellate court for the correction of errors under state law. Each point raised by the * * * (petitioner) is to be tested by whether it alleges a violation of rights under the United States Constitution: nothing more. That these allegations have been decided on the merits by the highest state court is a fact to be given great weight by a district court in passing upon petitions for habeas corpus. But that fact does not relieve the federal court of the duty to pass upon the merits of the petition.' The writ may not be used in this court in lieu of appeal or as a writ of error to review proceedings in the State court. Daniels v. Crawford, D.C.N.C. 1951, 99 F.Supp. 208, affirmed 4 Cir., 1951, 192 F.,2d 763, affirmed 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469.
I can find in the record of proceedings before me no basis for petitioner's second contention in support of his present application, that he was deprived of access to an appellate court because of inability to pay filing fees and cost of transcript, and was illegally denied leave to proceed in forma pauperis. The record incontrovertibly discloses that petitioner's attempt to appeal on March 21, 1955 from the denial of his motion for a new trial which was met by the request of the Clerk of the appellate court for the payment of a filing fee, was abandoned by the petitioner without invoking available means for obtaining leave to proceed in forma pauperis. (See footnote 1, ante.) After that abandonment, he elected to make a second motion for a new trial as a means of reviewing the denial of his previous motion for a new trial. Failing of success upon the second of these motions, and upon his motion for reconsideration and rehearing thereof and thereon, he made no attempt to obtain appellate review. Approximately a year and four months thereafter petitioner made application, as an indigent defendant, for a trial transcript and upon the denial of that application, took no further steps in his case for a period of about seven months, and then successfully moved only for correction of sentence. When Faiola was unsuccessful in his attempt to obtain leave to appeal in forma pauperis from the denial of his second motion for a new trial in March 1958, he then sought a writ of habeas corpus in the appropriate New Jersey court upon contentions asserting deprivations of constitutional guarantees similar to those asserted here. Upon that application and his subsequent successive procedures, petitioner, although unsuccessful at each stage, was accorded due process of law in every respect. His present contentions that he was deprived of access to an appellate court because of inability to pay filing fees and costs of transcript, and that he was illegally denied leave to proceed in forma pauperis, find no foundation in the record. The remedy which he presently seeks is not available where, as in the record before me, it conclusively appears that no constitutional or statutory right of the petitioner has been infringed.
Petitioner's reliance upon Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S. Ct. 585, 588, 100 L. Ed. 891, is misplaced. As stated at the outset of the opinion in that case, 'The question presented here is whether Illinois may, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, administer * * * (the statute providing that writs of error in all criminal cases are writs of right), so as to deny adequate appellate review to the poor while granting such review to all others.' Griffin and his fellow-petitioner, after conviction in the State trial court, moved for a 'certified copy of the entire record, including a stenographic transcript of the proceedings' to be furnished them without costs. They alleged that they were without means of paying the necessary fees for such records which were required for the prosecution of their appeal. By statute in Illinois, indigent defendants sentenced to death are provided with a free transcript of the trial proceedings at the expense of the county where the conviction was had, but in all other criminal cases, defendants needing a transcript, whether indigent or not, must themselves buy it. Another Illinois Act authorized indigent persons to obtain a free transcript of trial proceedings to obtain appellate review of constitutional questions but not of other alleged trial errors. The State of Illinois conceded, in Griffin, before the Supreme Court of the United States, that the petitioners therein needed a transcript in order to get adequate appellate review of their alleged trial errors. There was no contention that the petitioners were dilatory in their efforts to secure appellate review, or that the denial of review by the State Supreme Court was for insufficiency of the allegations of trial error. Although the Supreme Court of the United States vacated the judgment of the Supreme Court of Illinois, which had affirmed the dismissal of petitioners' appeal from their convictions, Mr. Justice Black, speaking for the Supreme Court of the United States, expressly stated (351 U.S. at page 20, 76 S. Ct. at page 591): 'We do not hold, however, that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. * * * The Illinois Supreme Court appears to have broad power to promulgate rules of procedure and appellate practice. We are confident that the State will provide corrective rules to meet the problem which this case lays bare.' The Supreme Court of New Jersey has provided such rules and the procedure prescribed thereby was available to the present petitioner had he sought to make use of it. The determination of whether or not the present petitioner was indigent was appropriately within the authority of the State court to which the petitioner's application was, or should have been, made. The determination of such a question of fact is not within the jurisdiction of this Court upon the present petition.
Faiola is here attempting to substitute his present application in place of an appeal. He is also attempting thereby to test the sufficiency of the conduct of proceedings against him and the propriety of his treatment prior to his trial by a court having jurisdiction, before a jury of his peers, and upon his pleas of not guilty to the offenses charged in the indictment. From the judgment of conviction against him he has been accorded every aspect of due process of law as far as opportunities for review, both appellate and otherwise, are concerned. The record is barren of any evidence of his having suffered any deprivation of his constitutional rights.
A writ of habeas corpus may not be allowed as an indirect method of disciplining law enforcement officers for misconduct. United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C.Pa.1948, 81 F.Supp. 861, affirmed per curiam, 3 Cir., 1949, 174 F.,2d 480.
Petitioner cannot be heard now, nor could he have been hard upon an appeal from the judgment of conviction, to complain that he was not accorded his constitutional right to a speedy trial, pursuant to the Sixth Amendment. See United States v. Sorrentino, 3 Cir., 1949, 175 F.2d 721, certiorari denied 338 U.S. 868, 70 S. Ct. 143, 94 L. Ed. 532, rehearing denied 338 U.S. 896, 70 S. Ct. 238, 94 L.ed, 551. Having ultimately stood trial and been convicted, delay in bringing him to trial would have been reviewable on appeal. Neither errors of his counsel, if any, during the trial, nor police brutality, if any, while he was awaiting trial not productive of any statement, admission, conviction or plea of guilty, constitute such deprivation of petitioner's constitutional rights as would render his present confinement illegal. 'Habeas corpus may not be used as a writ of error to correct an erroneous judgment of conviction of crime, but may be resorted to only where the judgment is void because the court was without jurisdiction to render it.' McNally v. Hill, Warden, etc., 1934, 293 U.S. 131, 138, 55 S. Ct. 24, 27, 79 L. Ed. 238. Petitioner is in custody pursuant to a legal sentence imposed after conviction upon a jury trial of a valid indictment. Here, as in United States ex rel. Wright v. Myers, Warden, etc., D.C.Pa.1956, 142 F.Supp. 387, certiorari denied 350 U.S. 942, 76 S. Ct. 319, 100 L. Ed. 822, petitioner attempts to obtain a de novo trial of the same issues which were submitted to the New Jersey courts. Petitioner was accorded a full and fair hearing before the courts of the State, which amply protected his rights under the Constitution of the United States. On the face of the record before me, it appears affirmatively here, as in Brown v. Allen, supra, that petitioner's constitutional rights have been fully protected.
For the foregoing reasons it is hereby, on this 8th day of July, 1960, ordered that the respective petitions of James Faiola for (a) leave to proceed in forma pauperis, (b) for assignment of counsel, and (c) for a writ of habeas corpus, be and hereby are denied.