United States of America Ex Rel. William Epton, Petitioner-appellant, v. Albert Nenna, Warden, Manhattan House of Detention for Men, Respondent-appellee, 355 F.2d 14 (2d Cir. 1966)

Petitioner was convicted on December 20, 1965, after a trial before Mr. Justice Markewitch and a jury in the New York Supreme Court of conspiracy to riot, conspiracy to commit anarchy and anarchy. Bail was denied by the Justice; sentence was set for January 27, 1966. Petitioner has concededly made no effort to seek relief from this denial in the State courts. Instead an application was made for a writ of habeas corpus to a judge of the United States District Court. The application was denied upon the ground that petitioner had failed to exhaust state remedies. This court accelerated the appeal which was heard on January 7, 1966.

Although petitioner sets forth many points of alleged error in the state court trial, these are matters for correction (if errors they be) in the state courts. Petitioner claims that New York has no procedure for reviewing the denial of bail between conviction and sentence. Judge Tenney in a well-reasoned opinion had serious doubts as to "whether petitioner has authoritatively shown the nonexistence of any remedies." Despite the suggestion of this court earlier in the week that such remedies be sought, no effort was made to seek relief in the state courts. The facts of this case do not warrant intervention by the federal courts to overrule the discretion exercised by a state court Justice before whom the case was tried and who has not yet imposed sentence.

Dismissal of the writ affirmed.