United States ex rel. Irving v. Casscles

332 F. Supp. 1083, 1970 U.S. Dist. LEXIS 12619

Opinion

EDWARD WEINFELD, District Judge.

The petitioner, who seeks a federal writ of habeas corpus to void a state court judgment of conviction entered upon his plea of guilty, now has pending undetermined an appeal in the Appellate Division, First Department, from the denial of a writ of error eoram nobis. That appeal presents the same claims upon which the present petition is based. Accordingly, there has been a failure to exhaust available state remedies. See Agone v. New York, 304 F.Supp. 1139 (S.D.N.Y.1969). Moreover, even if it be assumed that petitioner’s present claims, rejected on direct appeal, differ from those advanced on the coram nobis application and are thus technically exhausted, they are so interrelated with the coram nobis claims that any consideration here should properly await conclusion of the state appellate process on the coram nobis. Cf. United States ex rel. Brock v. LaVallee, 306 F.Supp. 159 (S.D.N.Y.1969).

The petition is dismissed for failure to exhaust available state remedies.