United States ex rel. McBride v. Fay

13 Citing cases

  1. Rose v. Lundy

    455 U.S. 509 (1982)   Cited 13,629 times   9 Legal Analyses
    Holding that district courts ordinarily must dismiss a ยง 2254 petition without prejudice if the petitioner has not exhausted his state postconviction remedies

    The federal courts that have addressed the issue of inter-relatedness have had no difficulty distinguishing related from unrelated habeas claims. Mixed habeas petitions have been dismissed in toto when "the issues before the federal court logically depend for their relevance upon resolution of an unexhausted issue," Miller v. Hall, 536 F.2d 967, 969 (CA1 1976), or when consideration of the exhausted claim "would necessarily be affected . . ." by the unexhausted claim, United States ex rel. McBride v. Fay, 370 F.2d 547, 548 (CA2 1966). Thus, some of the factors to be considered in determining whether a prisoner's grounds for collateral relief are interrelated are whether the claims are based on the same constitutional right or factual issue, and whether they require an understanding of the totality of the circumstances and therefore necessitate examination of the entire record.

  2. United States ex Rel. Smith v. Follette

    405 F.2d 1199 (2d Cir. 1969)   Cited 10 times

    348 F.2d at 898. Similarly, in United States ex rel. McBride v. Fay, 370 F.2d 547 (2d Cir. 1966) (per curiam) petitioner raised in a habeas corpus petition a claim that he had not raised in the state courts. In affirming the district court's dismissal of the writ the court stated: "It is incumbent on petitioner to show that the New York courts, at the present time, will not pass upon the claim which [petitioner] has raised here."

  3. United States v. McMann

    394 F.2d 402 (2d Cir. 1968)   Cited 39 times

    Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 195, 19 L.Ed.2d 41 (1967) ( per curiam), held that a federal court must, in certain circumstances, consider a State prisoner's claim, even though relief is available in the State courts. Citing Roberts, this Court recently held that a district court must consider an exhausted claim even though an unrelated claim is pending in the State. United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2 Cir., 1968). Since Levy's unexhausted claim โ€” that Cohen was coerced into testifying โ€” is unrelated to his principal claim, there is no basis for dismissing the petition in toto. Moreover, although Levy's other unexhausted claim โ€” that he was denied the right to cross-examine and confront the witness โ€” might be related to his principal claim, United States ex rel. McBride v. Fay, 370 F.2d 547 (2 Cir. 1966), it is frivolous. Therefore, in these circumstances, a dismissal of the entire petition would be, at best, a waste of petitioner's and the State's time and, at worst, so frustrating that petitioner, having exhausted his energies, might submit to the alleged injustices.

  4. United States v. Follette

    269 F. Supp. 7 (S.D.N.Y. 1967)   Cited 6 times

    Terry v. Denno, 254 F. Supp. 909, 910 (S.D.N.Y. 1966); United States ex rel. Knight v. Fay, 232 F. Supp. 910, 911-912 (S.D.N.Y. 1964); United States ex rel. Rios v. Fay, 232 F. Supp. 368 (S.D.N.Y. 1964). See also United States ex rel. McBride v. Fay, 370 F.2d 547, 548 (2d Cir. 1966). United States ex rel. McBride v. Fay, 370 F.2d 547, 548-549 (2d Cir. 1966).

  5. Belbin v. Picard

    454 F.2d 202 (1st Cir. 1972)   Cited 19 times
    Rejecting federal habeas relief where petitioner's state-court challenge to his conviction was still pending

    If we are right in assuming that as of now petitioner no longer, because of his failure to appeal the single justice's ruling, has available any state court remedy, it is permissible for him to file a new petition. United States ex rel. McBride v. Fay, 2 Cir., 1966, 370 F.2d 547, 549; Puckett v. Ellis, E.D. Texas, 1958, 157 F. Supp. 923, 928-929. We do not, however, approve of the practice of some other circuits permitting him to amend his original complaint.

  6. United States v. Follette

    393 F.2d 726 (2d Cir. 1968)   Cited 22 times

    Moreover, it is clear that on the claims before us a further state proceeding would be unavailing. If a federal court cannot withhold decision where relief is clearly available in a state court, it would seem manifest that it cannot decline jurisdiction where, as here, state remedies have been exhausted on a claim based upon federal law and the only pending state proceeding is completely unrelated to the issue before the federal court. There is, therefore, no relationship between the claims pending in federal and state court such as has led this Court in the past to stay consideration of the application for federal relief. See, e.g., United States ex rel. DeFlumer v. Mancusi, 380 F.2d 1018 (2d Cir. 1967) ( per curiam); United States ex rel. McBride v. Fay, 370 F.2d 547 (2d Cir. 1966) ( per curiam). United States ex rel. Hicks v. Fay, 230 F. Supp. 942 (S.D.N Y 1964), cited by the District Court, is not in point because in Hicks the very claim before the federal court was the subject of a simultaneous state court action.

  7. United States v. Mancusi

    380 F.2d 1018 (2d Cir. 1967)   Cited 13 times

    Thus consideration of the coerced confession claim should await the exhaustion of state remedies on the issues newly raised by petitioner. Cf. United States ex rel. McBride v. Fay, 370 F.2d 547 (2 Cir. 1966). See also United States ex rel. Martin v. McMann, 348 F.2d 896 (2 Cir. 1965).

  8. United States ex rel. Aloi v. Arnold

    413 F. Supp. 1384 (S.D.N.Y. 1976)   Cited 7 times

    United States ex rel. Irving v. Casscles, 448 F.2d 741, 742 (2d Cir. 1971), cert. denied, 410 U.S. 925, 93 S.Ct. 1376, 35 L.Ed.2d 586 (1973). See also United States ex rel. Levy v. McMann, 394 F.2d 402, 404-05 (2d Cir. 1968); United States ex ref. DeFlumer v. Mancusi, 380 F.2d 1018, 1019 (2d Cir. 1967); United States ex rel. McBride v. Fay, 370 F.2d 547, 548 (2d Cir. 1966). Under New York state law, materiality of the alleged perjurious statement to the grand jury investigation is an essential element of the crime of first degree perjury to be determined by the jury.

  9. United States ex rel. Ferguson v. Deegan

    323 F. Supp. 42 (S.D.N.Y. 1971)   Cited 4 times

    28 U.S.C. ยง 2254; United States ex rel. Molinas v. Mancusi, 370 F.2d 601 (2d Cir.), cert. denied, 386 U.S. 984, 87 S.Ct. 1285, 18 L.Ed.2d 232 (1967); United States ex rel. Tangredi v. Wallack, 343 F.2d 752 (2d Cir. 1965). Compare United States ex rel. DeFlumer v. Mancusi, 380 F.2d 1018 (2d Cir. 1967) (whole petition dismissed where two claims were related and state remedies had been exhausted as to only one); United States ex rel. McBride v. Fay, 370 F.2d 547 (2d Cir. 1966); United States ex rel. Brock v. La Vallee, 306 F.Supp. 159 (S.D.N.Y.1969) (whole petition dismissed where three unexhausted claims were joined with one exhausted but related claim) with United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968) (where unexhausted claims are unrelated to the principal exhausted claim or frivolous, the exhausted claim should be considered); United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2d Cir. 1968) (where unrelated claim was pending in state court, federal court should not decline to consider separate and exhausted claim). 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

  10. United States ex Rel. Brock v. LaVallee

    306 F. Supp. 159 (S.D.N.Y. 1969)   Cited 10 times

    Ibid. See United States ex rel. DeFlumer v. Mancusi, 380 F.2d 1018 (2d Cir. 1967) (per curiam) (conviction on guilty plea; claims of coerced confession and coerced guilty plea based upon invalidity of statutory scheme); United States ex rel. McBride v. Fay, 370 F.2d 547 (2d Cir. 1966) (per curiam) (claims based upon use of codefendant's confession against petitioner and rereading of confession to the jury without the presence of defendant, counsel or repetition of limiting instructions), cited in both Sniffen and Levy as examples of instances in which, although one claim was fully exhausted and the other was not, the entire petition was properly dismissed. United States ex rel. Jefferson v. Follette, 396 F.2d 862, 865 (2d Cir. 1968) requires no different result.