Opinion
Submitted July 21, 1961.
Decided September 18, 1961.
Glenn E. Rogers, Jr., pro se.
Louis J. Lefkowitz, Atty. Gen. (Louis E. Cooper, Asst. Atty. Gen.), for respondent.
Before MEDINA, WATERMAN and SMITH, Circuit Judges.
While it may be that relator's contentions are not now properly before us and we might, in any event, well refuse to consider them in their present confusing state, we do not reach these problems since his claims have not yet been passed upon by the appellate courts of New York. The refusal of the Appellate Division to dispense with printing requirements so that relator might appeal from denial of his application for state habeas corpus will not, we think, be repeated. See Smith v. Bennett, 1961, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39; Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; United States ex rel. Lopez v. McNeill, 2 Cir., February 1, 1961 (unreported); People v. Borum, 1960, 8 N.Y.2d 177, 203 N.Y.S.2d 84, 168 N.E.2d 527; People v. Wilson, 1960, 7 N.Y.2d 568, 200 N.Y.S.2d 40, 166 N.E.2d 838. Whether or not relator had satisfied the requirements of 28 U.S.C. § 2254 when he could formerly go no further in the state courts we need not consider, since there would appear to be presently available to him an adequate means by which to press his claims throughout the hierarchy of the state courts and in the Supreme Court of the United States. See Gusik v. Schilder, 1950, 340 U.S. 128, 71 S.Ct. 149, 95 L. Ed. 146; Marks v. Ragen, 1950, 339 U.S. 926, 70 S.Ct. 613, 94 L.Ed. 1347; Walker v. Ragen, 1949, 338 U.S. 833, 70 S.Ct. 37, 94 L.Ed. 507. Accordingly, if his appeal to the Appellate Division remains pending, relator should seek leave to dispense with printing anew; if his appeal has been dismissed, he may either move to reinstate it and seek to dispense with printing, or file another application for habeas corpus in the appropriate state court.
The application for a certificate of probable cause and for leave to appeal in forma pauperis is therefore denied.