Petition — Bell v. New York

Supreme Court, U. & +

FILED |

DEC 21 1979

MICHAL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Daviw BELL

Petitioner,

Vv.

STATE OF NEw York

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR SECOND CIRCUIT

Davin BELL, Pro SE

Petitioner

Office and Address

P.O. Box 130

Monticello, N.Y. 12701

(914) 794-5300

TABLE OF CONTENTS

Opinions of Courts Below

Jurisdiction

Question presented for review

Constitutional provisions

and statutes involved

When question was raised

Statement of Case

Basis for federal jurisdiction

in first instance

Argument:

Point I.

Reasons why this court should

grant review of the writ

PointII.

The collateral consequences of

the conviction are svere enough

to warrant petitioner as being

"in custody".

Conclusion

APPENDIX

Order of United States Court

of Appeals for second circuit

Opinion and order of United

States District Court for

Southern District of N.Y.

Page no.

ww NN»

3-4

I. OPINIONS OF THE COURTS BELOW

Bell vs. State of New York, 78 Civ2934

(SDNY)

Bell vs. State of New York, 79-2187

(NO opinion) (CA -2nd) i

II.JURISDICTION

1. Jurisdiction of this court issues

from 28 usc 1254 sub l

III. QUESTION PRESENTED FOR REVIEW

The threshold question of this habeas

corpus proceeding rests upon whether the

collateral consequences of petitioner's

conviction and sentence are severe enough

to place him ‘in custody', although he is

not now or was not ever incarcerated.

IV. CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED.

1. Title 28 USC sect. 2254

2. The 14th amendment of the United

States Constitution.

V. WHEN QUESTION WAS RAISED

Question was first raised in the

United States District Court of theSouth-

ern District of New York with the filing

of a petition for habeas corpus under

28 USC 2254 on May 25, 1978.

VI. STATEMENT OF CASE

On July 4, 1975, petitioner was

accosted in his own business establishment

by 3 persons claiming to be police - but

without any identification. During the inc-

ident, one warning shot was fired by petit-

ioner. Later he was arrested by uniformed

local policeman.

On April 20, 1976, after trial, pet-

itioner was convicted of two counts of

reckless endangerment in second degree and

resisting arrest in the Sullivan County

Court of the State of New York and sentenced

to one year probation and fined $ 1500.

On May 25, 1978 a petition for

habeas corpus was filed in the United States

District Court of the Southern District of

New York.

On April 30, 1979 the petition was

denied by the District Court.

On May 23, 1979 petitioner appealed

to the Court of Appeals for the second

circuit. On November 30, 1979 the judgement

of the lower court was affirmed without

opinion.

VII. BASIS FOR FEDERAL JURISDICTION

IN THE FIRST INSTANCE.

Jurisdiction arose from 28 USC 2254

and the 14th amendment of the United States

Constitution.

VIII. ARGUMENT

Point 1. Reasons why this court should

grant review of the writ.

Although the lower courts have

recognized that the writ ofhabeas corpus

has been extended over the years to go beyond

incarceration; each circuit has defined the

civil restraints- which survive the convict-

ion- to warrant being ‘in custody', on an

ad hoc basis. Such a rule of law which makes

Federal adjudication dependent upon the acc-

ident of petioner's domicile,,an untenable

legal concept.

— i

Secondly, the Court of Appeals in

affirming the district court's judgement

(without opinion) accepted that court's

subjective view that petitioner's conviction

was of a trivial nature and only equivalent

to a fine. This view is controverted by the

record. Although petitioner was not incarc-

erated, the sentence of one year probation

hung like a sword over petitioner's head

withan implied threat of control by the

court or even re-sentencing during the

probationary period. " It is not physical

custody that gives standing to habeas corpus

it is instead the restraint on liberty whe-

ther physical or of amore subtle nature."

Gover vs McCarthy, 301 F Supp. 364.

This court should rule whether a

first offender( i.e. like petitioner)

trapped by cicumstances, is less equal under

the law than the numerous recidivists being

allowed relief, who are not in actual phys-

ical custody. ( See citations infra)

Point II.- The collateral consequences

of the conviction are gvere enough to

warrant petitioner as being ‘in custody'.

The United States Supreme Court in

Carafas vs La Vallee, 391 US 234( cited

by the district court) fully recognized

that serious colla:eral consequences may

ee

flow from a conviction and continue to

restrict a persons freedom even after he has

completed his sentence.

of the sentence is not of itself related

to the possible severity of the collateral

consequences which survive it. See Clay vs.

Riddle, 4th circ. 541 F 2d 456 which involved

a traffic offense aria 30 day sentence.

The question of whether the surviving

consequences are serious enough to warrant

as being'in custody' is subjective and must

be viewed in the context’of backround, char-

acter and reputation of the petitioner.

To this petitioner, the moral and

spiritual weight of the conviction and

sentence is a cross he cannot bear, and

he submits that were it otherwise he would

not be here before this court seeking relief.

=~

Up to this abortive incident, petit-

ioner, for 58 years, had been a peace loving

law-abiding citizen, never accused or arrested

for any violation of law. Petitioner was

active in civic affairs in the cogmunity and

whose character and good reputation was

attested to bg leading citizens and two

judges.

To the humiliation of the arrest,

trial and conviction and attend@nt exetensive

publicity must be added the civil disabil-

ities of the conviction, spelled out in New

York State statutes. Based on these statutes

a certificate of relief from some of these

disabilities was granted by the State of New

York to this petitioner. The certificate is

not absolute or final and is revokable.

Petitioner cannot hold public office or

be an officer in any union, the certificate

states thatit," shall not prevent any judic-

ial, administrative, licensing or other body,

board or authority from relying upon the

conviction- as a basis for the excercise of

it's discretionary power to suspend, revoke,

refuse to issue or renew any license, permit

or other authority or privilege."

In light of the aforementioned restraint of

his civil rights, is it not clear that

petitioner, " is suffering and will continue

to suffer serious disabilities because of

the laws complexities and not because of

his fault, if his claim that he has been

illegally convicted is meritorious."

Carafas supra at 239.

On the other hand, clearly toa

person who has been previously, incarcerated

or arrested before, the conviction and sent-

ence of petitioner would be considered

trivial, accepted and even welcomed.

Although the merits of petitioner's

claim are now, not at issue; he submits that

the record fully supports his allegations

that he was denied a fair trial, guaranteed

by the 14th amendment of the United States

Constitution, that the conviction was a

gross miscarriage of justice and that there

are ample and sufficient grounds for

reversal of the conviction on the merits.

a ae

‘decisions of the courts below -.-

CONCLUSION

The Court should clearly d

scope of the collateral conseque

suvive the conviction-, so that

to the concept of equal justice -

obviated.

uld be

This petition for Writ of Certiorari

Should be granted, and full argument heard

by this court on the merits of petitioner's

claim.

Dated: December 10, 1979

Monticello N.Y.

Respectfully,

VJtuy fae

Petitioner, pro se

A-1l

UNITED STATES COURT OF APPEALS

For the Second Circuit

At a stated term of the Unitéd States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City

of New York, on the 30th day of a + usta

PRESENT: Hon. William H. Mulligan “+

Hon. ThomasJ. Meskill

Hon. Amalya L. Kearse

Circuit Judges

David Bell,

Petitioner-Appellant

wagainst- 78-2187

State of New York,

Respondent- Appellee.

Appeal from the United States District

Court for the Southern District of N.Y.

This cause cam on to be heard on the

transcript of record from the U.S. District

Court for the Southern District of N.Y. and

was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged and decreed that the

judgement of said District Court be and it

hereby is affirmed on the opinion below of

Hon. Robert L. Carter, 78 Civ 2934 ( SDNY

April 30, 1979)

William H. Mulligan

Thomas J. Meskill

Amalya L. Kearse

—————————

A-2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Petitioner,

78 Civ 2934

-against- (RLC)

State of New York,

Respondent.

APPEARANCES

David Bell

Petitioner, pro se

P.O. Box 130

Monticello N.Y. 12701

Robert Abrams

Attorney General of the State of New York

Two World Trade Center

New York N.Y. 10047

By: Clement H. Berne

Deputy Asst. Atty. Gen.

CARTER,D.J.

A-3

OPINION

David Bell has filed a petition for a

writ of habeas corpus pursuant to 28 USC 2254

challenging his conviction for the crimes of

reckless endangerment in second degree, N.Y.

Penal Law 120.20 ( McKinney)and resisting

arrest, N.Y. Penal Law 205.30 ( McKinney).

The state opposes the petition and has sub-

mitted an affidavit

FACTS

Based upon the briefs submitted by both

parties and the transcript of the trial, the

relevant facts may be summarized as follows:

In the early morning hors of July 4, 1975,

Bell, general manager of a motor lodge,

was called to the establishments lounge bec-

ause of some altercation. Upon entering the

lounge armed with a pistol, petitioner encount-

ered two individuals engaged in conversat-

ion with Chester Shapiro, the motel lodge's

bar manager. These individuals were under-

coverpolice officers who, shortly before

Bell's arrival on the scene,had arrested

Shapiro for allegedly soliciting an under- .

cover police officer to engage in prostitut-

ion and for offering her a white powder that

was alleged to be cocaine. When the police-

officers informed petitioner of their ident-

ity he demanded indentification, There is

some conflict in the testimony as to the

officers response. They have testified that

Bell refused to permit them to produce the

identification, but Bell claims that the

officers simply refused to respond to his

request, Petitioner then forced the officers

out of the lounge at gunpoint, and Shapiro

left.After ejecting the officers from the

premises, petitioner fired a single warning

shot. Upon leaving the lounge a short time

A-4

later, petitioner approached two uniformed

police officers near the motor lodge and

was arrested.

Bell was subsequently indicted and

brought to trial before ajury in the County

Court of Sullivan County. On April 20, 1976,

he was convicted of the crimes of reckless

endangerment in second degree andresisting

arrest, and was sentenced to a one year

cnditional discharge and a fine of $ 750 on

each count. Petitioner paid the $ 1500

fine on April 21, 1976 and was never incar-

cerated.

On January 9, 1978, the judgement was

affirmed by the Appellate Division, Third

Department. The Court of Appeals ( Jones,J.)

denied leave to appeal on February 21, 1978,

and it also denied applications for recons-

ideration on March 10 and April 11, 1978.

Petitioner filed this petition on June 28,

1978. 3

DISCUSSION

Petitioner seeks to overturn the state

court's judgement on the ground that he was

convicted without due process of law ( U.S.

Constit. Amend. XIV ) He advances a variety

of arguments in support of his petition.

First, Bell was indicted jointly with the

bar manager, Shapiro, who was prosecuted for

prostitution and possession of narcotics.

This, Bell claims, improperly prejudiced the

Grand Jury wainst him. because it implied

he was connected with the charges brought

against Shapiro. Second, Bell claims inflam-

matory statements made to the news media by

police prevented him from receiving a fair

trial by an impartial jury. Next, Bell ass-

erts that police officers were permitted at

aS

trial to give inflammatory and hearsay test-

imony concerning their alleged transactions

with Shapiro, thereby improperly prejudicing

the jury against petitioner, Bell argues

generally that he was improperly denied the

opportunity to raise certain arguments or

introduce certain evidence ar trial and,

finally that the New York State Police and

State Liquor Authority conspired to influence

the trial and obtain a conviction.

The Threshold issue in a petition

brought under 28 USC 2254(L} is a determin-

ation of whether"a person is in custody

pursuantto the judgement of the state court.

--+---" A writ of habeas corpus is an extra-

Ordinary remedy that will not lie unless’

subtantial restraints are placed upona pers-

on's freedom. Faye vs Noia. 372 Us 391, 83

S.CT. 822, 9 L Ed 2d 837 ( 1963); Roddy vs

Black, 516 F 2d 1380, 1383 (6th circl975)

Cert denied, 423 US 917, 96 S Ct. 226, 46

L Ed 2d 147; United States ex rel La Near vs

La Vallee 306 F 2d 417 ( 2d Cir. 1962)

Petitioner is correct when he argues

that the definition of custody has been

expanded beyond the scope of physical detent-

ion. In Carafas vs. La Vallee%9l US 234, 88

S Ct. 1556, 20 L Ed 2d 554 ( 1968), the

Supreme Court recognized that seriouscollat-

eral consequences may flow from a conviction

and continue to restrict a person's freedom

even after he has completed his sentence.

This doctrine of collateral consequences has

most often been invoked in cases where a

court maintains jurisdiction over a petition

after the petitioner has been released from

physical confinement. See Carafas vs La Vallee

Supra, 391 Us at 239. Neverthless, a writ

may also lie where the petitioner has never

been confined, but suffers collateral

A-' 6

consequences so severe as to be tantamount

to custody .

However, a close inspection of the ;

conditions attached to Bell's one year condit-

ional discharge discloses no restrictions

harsh enough to constitute custody. Petitit-

ioner was merly directed " to avoid any

injurious or viscious habits, .... reftilan

from frequenting unlawful places and consort-

ing with disreputable persons; ... and

refrian from any further violations of the

law. Stenographic minutes of Trial People

v. Bell p. 973. Petitioner's sentence was

therefore analogous to a fine-only conviction,

for which federal habeas corpus will not lie.

Hanson v. Circuit Court of First Judicial

Circuit of Illinois , 591 F 2d 404(7th Cir.

1979).

Petitioner further alleges that the

damage to his good name and reputation are

equivalent to custody, The Proposition is

without merit. Its adoption would render

the custody prereqnisite meaningless, since

every person convicted of a violation, no

matter how minor,could claim reputational

damage. Petitioner's final allegation that

he suffers from civil disabilities is

unsubstantiated by the record. It is true

that habeas corpus review may be appropriate

where the collateral consequences of the

conviction impose severe burdens on the

petitioner by for example, preventing him

from voting, serving as a juror or union

official, engaging in certian businesses,

or obtaining a firearms permit or drivers

license. Carafas vs La Vallee, supra, 391

Us at 237; Justin vs Jacobs449 F 2d 1017,

1019( DC Circ. 1971), However, since the

crimes of which Bell was convicted are

A-7

misdemeanors rather than felonies, he is

deprived of neither his right to vote, N.Y.

Election Law 5-106(2) ( McKinney), nor his

real estate broker's license, N.Y. Real

Property Law, 440-a ( Mc Kinney). Carafas

indicates that only severe restraints wilds

satisfy the " in custody"requirement,

and petitioner has failed to allege any .

specific disabilities.

Accordingly, the petition is denied.

IT IS SO ORDERED.

Dated: New York N.Y.

April 30, 1979

Robert L. Carter

U.8i.D.0