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UNITED STATES EX REL. VICTOR v. YEAGER

August 24, 1971

UNITED STATES of America ex rel. Troy VICTOR, Petitioner,
v.
Howard YEAGER, Warden, Respondent


Lacey, District Judge.


The opinion of the court was delivered by: LACEY

LACEY, District Judge:

 Petitioner, Troy Victor, proceeding pro se, seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., attacking the legality of his confinement in New Jersey State Prison.

 Upon the filing of respondent's answer, the cause was referred to the Honorable John W. Devine, United States Magistrate, pursuant to 28 U.S.C. § 636(b)(3) and General Rule 40E(3), for his preliminary review and report, and recommendation to this Court as to whether a hearing is warranted.

 This proceeding dramatizes the growing abuse of the Great Writ by distorting it into an appellate review of state court proceedings.

 The relator was convicted and sentenced in the Essex County Court in June 1968; the Appellate Division affirmed the conviction on September 30, 1970; the New Jersey Supreme Court denied certification on November 17, 1970, 57 N.J. 210, 271 A. 2d 5; and the United States Supreme Court denied certiorari on March 22, 1971, 401 U.S. 981, 91 S. Ct. 1216, 28 L. Ed. 2d 332. Within two months thereafter the instant petition was filed, its text drawn principally, and largely verbatim, from the briefs filed in the state courts.

 Whatever merit there may have been on direct review to petitioner's contentions, they do not require constitutional adjudication on collateral review. Nonetheless, the Magistrate, and this Court, to render a determination herein, had to read almost 600 pages of trial transcript and 75 pages of briefs and opinion. A dire prediction, based on the current substantial trend, can be made: the time is not far distant when virtually every convicted defendant will seek further "appellate" review by habeas corpus immediately after state appellate affirmance of his conviction.

 Even partial fulfillment of this prophecy will cripple the District Court of this district. The intrusion of these matters even now consumes a substantial part of the Court's available time.

 Under date of May 26, 1971, Honorable Quentin N. Burdick (Sen. N. Dak.), Chairman of the United States Senate's Subcommittee on Improvements in Judicial Machinery to the Senate's Committee on the Judiciary, transmitted to the federal judiciary a draft bill (S. 1876) providing for comprehensive revision of certain sections of Title 28 of the United States Code. An extract from the Congressional Record (92d Cong., 1st Session, vol. 117, May 14, 1971, pp. 1 et seq.), transmitted therewith, highlights a portion of a statement of former Chief Justice Warren which led to a 10-year study of federal court jurisdiction by the American Law Institute:

 
It is essential that we achieve a proper jurisdictional balance between the federal and state court systems, assigning to each system those cases most appropriate in light of the basic principles of federalism.

 This extract, which is Senator Burdick's presentation of S. 1876 to the Senate, points with alarm to the unprecedented increase in 1970 in the cases pending in the United States District Courts; states that the number in 1970 was up 10% in just one year; and that it represented a 66% increase over 1960. Senator Burdick then states:

 
* * * In light of these changes, it is appropriate for Congress to examine the jurisdiction of the Federal Courts.

 It is indeed appropriate, and terribly necessary. With rare exceptions, a habeas corpus petitioner asserts grounds requiring a reading of the entire trial transcript. With Jackson v. Denno, Stovall v. Denno, and Mapp hearings, further enlarging the record in many cases, the petition which does not require reading several hundred pages of transcript is the exception. The burdens sought to be lifted from the federal judiciary by S. 1876 are light and tolerable contrasted with those imposed by the habeas corpus jurisdiction. It is to the latter to which all ...


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