New York Ex Rel. Whitman v. Wilson, 318 U.S. 688 (1943)

PER CURIAM.

Petitioner began this proceeding by an application for a writ of habeas corpus in the Supreme Court of the State of New York, Washington County. He alleged that his conviction had been procured through the use of perjured testimony knowingly used by the prosecution, and that, under Mooney v. Holohan, 294 U.S. 103, his commitment was in deprivation of his constitutional rights under the Due Process Clause of the Fourteenth Amendment. The writ of habeas corpus was dismissed by the Supreme Court; its order was affirmed by the Appellate Division, 263 App.Div. 908, 32 N.Y.S.2d 29; leave to appeal to the Court of Appeals was denied by both the Appellate Division and the Court of Appeals, 263 App.Div. 924, 32 N.Y.S.2d 1023; 287 N.Y. 856, 40 N.E.2d 49. We granted certiorari, 317 U.S. 615, and because petitioner was a poor person without counsel of his own selection, we appointed counsel to represent him. 317 U.S. 615. Since the argument in this Court, the Court of Appeals has entered a further order dismissing petitioner’s attempted appeal to that court as of right, stating that "the case is one where appellant is not entitled to a writ of habeas corpus under section 1231" of the New York Civil Practice Act. 290 N.Y. 670, 49 N.E.2d 626.

In his brief and argument in this Court, the Attorney General of the New York, on respondent’s behalf, took the position that New York law makes the writ of habeas corpus available to test the constitution validity, under the Due Process Clause, of petitioner’s detention. In support of this contention, the Attorney General relied upon a number of cases in the New York courts, which appear to sustain his position. People ex rel. Moore v. Hunt, 258 App.Div. 24, 16 N.Y.S.2d 19; People ex rel. Harrison v. Wilson, 176 Misc. 1042, 29 N.Y.S.2d 809; People ex rel. Kruger v. Hunt, 257 App.Div. 917, 12 N.Y.S.2d 167; People ex rel. Kennedy v. Hunt, 257 App.Div. 1039, 13 N.Y.S.2d 797.

After the oral argument in this Court, the Court of Appeals, on March 4, 1943, decided the case of Lyons v. Goldstein, 290 N.Y.19, 47 N.E.2d 425. It there held that, despite the lapse of time, a state court in which a judgment of conviction has been entered retains jurisdiction, analogous to the common law jurisdiction upon writ of error coram nobis, to set aside the conviction on a showing that a plea of guilty had been obtained by fraud and misrepresentation on the part of a prosecuting official. The opinion rests in part on the requirement of the Due Process Clause that a prisoner be granted a hearing on the merits of such a contention; it cites Mooney v. Holohan, supra, and also Walker v. Johnston, 312 U.S. 275, and Waley v. Johnson, 316 U.S. 101, 104-105, in which this Court sustained the use in the federal courts of habeas corpus to that end. The opinion does not expressly consider or otherwise allude to the question whether, under New York practice, habeas corpus may be used as either an alternative or a cumulative remedy in such a case.

In his latest submission to us, the Attorney General now contends that, in the light of the decision in Lyons v. Goldstein, supra, the remedy by a proceeding coram nobis in the court where the judgment of conviction was entered (here the Court of General Sessions, New York County) is exclusive, and that habeas corpus accordingly is not available to petitioner in the state courts, even if, on the merits, petitioner has set forth a prima facie case. Petitioner takes the contrary position.

If habeas corpus is not an appropriate remedy under the state law, the present proceeding must be dismissed. But we are unable to decide this question with finality, or to resolve the contentions with respect to it, in advance of a controlling decision of the New York courts. In view of the changed situation resulting from the decision in Lyons v. Goldstein after we granted certiorari, we think it appropriate to vacate the judgment and to remand the cause to the state court for its determination in the light of that decision, and for such further or other proceedings as may be deemed advisable. Patterson v. Alabama, 294 U.S. 600, 607; Missouri ex rel. Wabash Ry. Co. v. Public Serv. Comm’n, 273 U.S. 126, 131; State Tax Comm’n v. Van Cott, 306 U.S. 511, 515-516; Villa v. Van Schaick, 299 U.S. 152.

So ordered.

MR. JUSTICE RUTLEDGE took no part in the consideration or decision of this case.