Mercado v. Rockefeller

1 Citing case

  1. Mercado v. Rockefeller

    502 F.2d 666 (2d Cir. 1974)   Cited 20 times

    This is an appeal from an order of the United States District Court for the Southern District of New York dismissing appellants' complaint for failure to exhaust available state remedies. The opinion of Judge Frankel below is reported at 363 F.Supp. 489 (1973). Appellants seek to have the order below reversed and the case remanded to the district court with instructions to proceed to a consideration of the merits of their claim that ยง 712(b) of the New York Family Court Act is unconstitutional on the ground that it is void for vagueness. As will appear from our discussion of the issue in this opinion, we consider the merits of this claim to have been settled by the United States Supreme Court in In re Tomasita Negron, cited as In re Negron, 409 U.S. 1052, 93 S.Ct. 572, 34 L.Ed.2d 507 (1972), and although we realize that the district court did not entertain the issue on the merits on the ground that plaintiffs had not exhausted available state remedies, we direct that it be dismissed as presenting a claim upon which relief cannot be granted.