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IN RE STECKER

January 10, 1966

Application of Melvin STECKER for Issuance of a Writ of Habeas Corpus


The opinion of the court was delivered by: MADDEN

 The petitioner, Melvin Stecker, instituted these proceedings on June 18, 1965, by the filing of a petition for the issuance of a writ of habeas corpus under the provisions of Section 2241 of Title 28, U.S.C. At the time of filing, the petitioner was confined in the Camden County Jail under the custody of the Sheriff of Camden County awaiting re-commitment to the New Jersey State Prison to serve the balance of a 5 to 7 year sentence imposed by the Camden County Court on January 4, 1962, upon his conviction by jury on an indictment charging him with assault with intent to commit robbery.

 In his application, the petitioner alleges he was deprived of his constitutional right to a fair and impartial trial in the Camden County Court in violation of the "due process of law" clause of the Fourteenth Amendment of the Constitution of the United States. In support of this allegation, the petitioner alludes to the record of the trial proceedings before the Camden County Court and indicates three instances in the transcript of the trial wherein trial errors or irregularities allegedly occurred. The petitioner contends that these trial errors or irregularities, when considered singularly or cumulatively, are of such magnitude and prejudice that the petitioner was deprived of a fair and impartial trial. This is the sole basis for the petitioner's application and the only federal question raised by the petitioner in these proceedings.

 The petition was accompanied by an application for admission to bail pending the return of the writ and a determination of the proceedings by the Court. In his application for bail it appears that the petitioner was arrested on July 1, 1961; that he was released on bail fixed in the amount of $10,000.00 pending and during his trial which commenced on November 30, 1961 and continued through December 4, 1961; that the petitioner was convicted as a result of the trial and remained on such bail until he was sentenced by the Camden County Court on January 4, 1962, whereupon he commenced service of his sentence; that the petitioner filed a notice of appeal on March 26, 1962, and was again released on $10,000.00 bail on the following day, pending the determination of his appeal to the Appellate Division of the Superior Court of New Jersey; that on January 9, 1963, pursuant to an opinion rendered by the Appellate Division, the petitioner's conviction was affirmed; that the petitioner applied for a writ of certiorari to the Supreme Court of New Jersey which was denied on September 16, 1963, during which time the petitioner remained on bail; that the petitioner's bail was continued pending certification to the Supreme Court of the United States by an order entered on October 11, 1963; and that the petitioner remained on such bail until he surrendered himself on June 18, 1965, after it appeared that the petitioner's out-of-state attorney, through some confusion, failed to perfect his application for certification to the Supreme Court of the United States.

 On June 22, 1965, this Court ordered the issuance of a writ of habeas corpus, returnable on July 7, 1965; *fn1" and in the exercise of its discretionary power to admit the petitioner to bail pending the return of the writ, bail was fixed in the amount of $10,000.00. *fn2" On the same day, a writ of habeas corpus directed to the Sheriff of Camden County was issued and the petitioner was released on bail pending the hearing and determination on the writ.

 On the return of the writ, on July 7, 1965, the petitioner appeared through his counsel, and the State of New Jersey was represented by the assistant prosecutor who had tried the case against the petitioner in the Camden County Court and who had argued the matter on behalf of the State on appeal before the Appellate Division of the Superior Court of New Jersey. During the course of the hearing exhibits were introduced into evidence and the arguments of counsel were heard. At the conclusion of the hearing, the decision of the Court was reserved with leave granted to counsel to submit memoranda, and the petitioner was continued on bail until further order of the Court.

 Jurisdiction of the matter is readily established under the provisions of Section 2241 of Title 28, U.S.C., which affords this Court with the jurisdiction and power to grant a writ of habeas corpus to a state prisoner held in custody in violation of the Constitution of the United States. United States ex rel. Elliott v. Hendricks, 213 F.2d 922 (C.A., 3rd Cir. 1954), cert. den. 348 U.S. 851, 75 S. Ct. 77, 99 L. Ed. 670. The requisite exhaustion of available state court remedies under Section 2254 of Title 28, U.S.C., has been shown. It is well established that under Section 2254 it is sufficient for a state prisoner seeking federal habeas corpus to show that he has appealed unsuccessfully his conviction through the state appellate process wherein he had raised and presented the same federal issue which he raises in his application before the federal district court. Under such circumstances there is no need for the state prisoner to show resort to state post-conviction relief and the full exhaustion thereof since there is either an absence of available state court remedies or circumstances rendering the same ineffective. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Brown v. Allen, 344 U.S. 443, 97 L. Ed. 469, 73 S. Ct. 397 (1953); In re Thompson's Petition, 301 F.2d 659 (C.A., 3rd Cir., 1962); Application of Landeros, 154 F. Supp. 183 (D.C.N.J., 1957); Application of Kaufman, 136 F. Supp. 626 (D.C.N.J., 1955).

 The issue presently before the Court was previously raised and presented by the petitioner on his unsuccessful appeal from his conviction to the Appellate Division, and on his application for certiorari to the Supreme Court of New Jersey. While the petitioner did not perfect his application for certification to the Supreme Court of the United States in the course of his appeal of his conviction through the state appellate process, nevertheless, this Court is satisfied that the petitioner did not deliberately by-pass or intentionally waive his right to apply to that Court for certification. *fn3" Hence, this Court is not precluded under Section 2254 from granting the relief requested by the petitioner should the merits of the issue before the Court be determined in favor of the petitioner. Fay v. Noia, supra.

 No notion of "due process of law" is more essential to fundamental fairness or more basic to the integrity of a judicial system than the right of an accused to a fair and impartial trial. The "due process" clause of the Fourteenth Amendment demands a zealous observance of this right by the courts of the several states in all criminal prosecutions. Where a state criminal trial is otherwise conducted in disregard of this right, "due process" is offended and the Fourteenth Amendment is operative to render the judgment of conviction void. Baker v. Hudspeth, 129 F.2d 779 (C.A., 10th Cir., 1942), cert. den. 317 U.S. 681, 63 S. Ct. 201, 87 L. Ed. 546.

 In the instant proceedings the petitioner seeks to have the judgment of conviction rendered against him in the Camden County Court declared void. It is the petitioner's contention that he was deprived of his right to a fair and impartial trial in violation of the "due process" clause of the Fourteenth Amendment, and he bases this contention on the alleged commission or occurrence of certain errors or irregularities during the course of his trial. Thus, inquiry is directed to determine whether the petitioner's trial in the County Court was conducted in such a manner as to amount to a disregard of that fundamental fairness essential to the very concept of justice or a denial of fundamental fairness shocking to the universal sense of justice. Lisenba v. People of State of California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941); Chavez v. Dickson, 280 F.2d 727 (C.A., 9th Cir., 1960); Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

 Generally, the commission or occurrence of such errors or irregularities merely involve issues relating to state law and procedure rather than to federal constitutional issues and are justiciable only on direct appeal rather than on federal habeas corpus proceedings. The proposition has long been established that habeas corpus cannot be utilized as a substitute for appeal or as a writ of error to review such errors or irregularities. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969 (1915). It is only under circumstances impugning fundamental fairness or infringing upon specific constitutional protections that federal issues are presented. Trial errors or irregularities which are so prejudicial to an accused's right to a fair and impartial trial as to be clearly a deprivation of his constitutional right under "due process of law" constitute a justiciable federal issue which may be adjudicated on habeas corpus proceedings. Lisenba v. People of State of California, supra; Pike v. Dickson, 323 F.2d 856 (C.A., 9th Cir., 1963).

 The question before this Court is not whether this Court would have conducted the trial in the same fashion as the state trial court or whether on appeal this Court would view the alleged errors or irrgularities as harmless errors as determined by the state appellate court, but whether the alleged errors or irregularities (if they may be regarded as such), either singularly or cumulatively, had the effect of depriving the petitioner of fundamental fairness in a constitutional sense, and, hence, his right to a fair and impartial trial. It is clear that the adjudication of facts relating to the petitioner's claim by the state courts on appeal is not final or binding on this Court in these proceedings, and that this Court is not bound by the state court's conclusion that the errors or irregularities were not so prejudicial to the petitioner as to require a reversal. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1952); Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1962); Pike v. Dickson, supra.

 In determining whether there has been a denial of "due process" on the aforementioned grounds the inquiry on habeas corpus is directed to a review of the entire proceedings and not just to each step and part thereof, for if the total result was the granting of a fair and impartial trial, then the petitioner's constitutional right has not been invaded and the proceedings will not be disturbed. Abel v. Tinsley, 213 ...


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