Kendall Brown, Petitioner-appellant, v. John Wilmot, Superintendent of Elmira Correction Center, Andlouis J. Lefkowitz, Attorney General of the Stateof New York, Respondents-appellees, 572 F.2d 404 (2d Cir. 1978)

Kendall Brown, a prisoner in state custody, appeals from an order of Judge Werker in the United States District Court for the Southern District of New York, denying his petition for a writ of habeas corpus.¹  Appellant was sentenced to an indeterminate prison term not to exceed seven years after his conviction for first degree robbery in the Supreme Court of New York, Bronx County. That conviction and sentence are presently on appeal to the Appellate Division of the New York Supreme Court, First Department. Meanwhile, appellant has sought bail pending his appeal pursuant to N.Y.Crim.Proc.Law § 460.50.²  In a memorandum order dated July 21, 1977, Associate Justice Harold Birns of the First Department denied appellant's motion for bail without a statement of reasons. Appellant then unsuccessfully petitioned the federal district court for a writ of habeas corpus conditioned upon the speedy granting of bail by the state court or a statement of reasons for denying it. This appeal followed.

It is clear that there is no absolute federal constitutional right to bail pending appeal after a conviction in the state courts, see Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). However, once a state provides for bail in that circumstance, the Eighth and Fourteenth Amendments impose certain limitations on the state court's discretion to grant or refuse bail. Since "we perceive no constitutional distinction between requiring excessive bail and denying bail altogether in the absence of legitimate reasons," United States ex rel. Goodman v. Kehl, 456 F.2d 863, 868 (2d Cir. 1972), it follows that appellant could not have been arbitrarily or unreasonably denied bail consistent with his constitutional rights. See United States ex rel. Walker v. Twomey, 484 F.2d 874, 875 (7th Cir. 1973); Abbott v. Laurie, 422 F. Supp. 976, 978 (D.R.I. 1976); cf. United States ex rel. Covington v. Coparo, 297 F. Supp. 203, 206 (S.D.N.Y. 1969). The difficult constitutional question posed here is whether the denial of bail pending appeal without a statement of reasons is per se arbitrary or arbitrary only if no rational basis exists in the record to support the denial. Compare United States ex rel. Abate v. Malcolm, 397 F. Supp. 715 (E.D.N.Y.), vacated as moot, 522 F.2d 826 (2d Cir. 1975); Abbott v. Laurie, supra; and United States ex rel. Bad Heart Bull v. Parkinson, 381 F. Supp. 985 (D.S.D. 1974) with United States ex rel. Walker v. Twomey, supra; and Natal v. People of Puerto Rico, 424 F. Supp. 1082 (D.P.R. 1975).³ 

However, we do not believe that we should reach this interesting issue on the merits because it appears that appellant has not exhausted his state remedies as required by 28 U.S.C. § 2254.⁴  While no direct appeal is available from Justice Birns's order, see People of State of New York ex rel. Klein v. Krueger, 25 N.Y.2d 497, 500, 307 N.Y.S.2d 207, 255 N.E.2d 552 (1969), it is likely that a state habeas corpus application would be available here, especially since the Attorney General's representative informed us at oral argument that if there were a habeas corpus petition in the state courts he would recommend that it not be opposed on procedural grounds. Appellant candidly states that he has not attempted to bring a state habeas petition, but argues that no collateral state relief is available, see, e. g., Matter of Lefkowitz v. Cioffi, 46 A.D.2d 473, 363 N.Y.S.2d 583 (1st Dept. 1975); People of State of New York ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267 (1st Dept. 1966). However, these decisions seem to hold only that an alleged abuse of discretion in denying bail may not be challenged in a state habeas proceeding. These cases do not appear to foreclose the substantial probability that appellant would be able to challenge the constitutionality of a refusal to grant bail without a statement of reasons. See United States ex rel. Carmona v. Ward, 416 F. Supp. 272 (S.D.N.Y. 1976); but see United States ex rel. Tuthill v. Sherwood, 399 F. Supp. 32, 33 (S.D.N.Y. 1975). We do not think it appropriate for this court to guess what constitutional issues New York courts will or will not entertain in a habeas proceeding. As we recently reiterated in Wilson v. Fogg, 571 F.2d 91 at 95 (2d Cir. 1978), " '(e)ven if there were some doubt as to the availability of relief in the New York courts, we still would give its courts the first chance to review their alleged errors so long as they have not authoritatively shown that no further relief is available.' United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964)." See Kaplan v. Bombard, 573 F.2d 708, 710 & n. 1 (2d Cir. 1978).

Therefore, we affirm the denial of the petition for a writ of habeas corpus, but solely on the ground that state remedies should be exhausted. Our order is without prejudice to appellant's right to renew his petition should relief be denied in the New York state courts.