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Y-1353 v. Howard

decided: December 8, 1978.



Before Aldisert and Higginbotham, Circuit Judges, and Stern, District Judge.*fn*

Author: Higginbotham


We are confronted here with the question of whether a federal court is powerless to review a petition for a federal writ of habeas corpus when a defendant has waited almost twelve years for the state trial court to rule on a motion for a new trial. The district court found that the petition is "premature"*fn1 because the petitioner "has failed to exhaust the remedies available to him in the courts of the Commonwealth," and dismissed the request for federal habeas corpus review. Codispoti v. Howard, No. 77-441, June 28, 1977.

In December 1966 Dominick Codispoti was found guilty of prison break and holding hostages in a penal institution. On the day of his sentencing, December 12, 1966, he filed a motion for a new trial. To this date the Pennsylvania trial court has Never ruled on the motion. Unless there is some exceptional circumstance, which we do not now perceive from the limited record in this case, the petitioner is entitled to a habeas corpus inquiry to determine whether, as Mr. Justice Holmes stated, "although every form may have been preserved" his substantive rights have been reduced to nothing "more than an empty shell." Frank v. Mangum, 237 U.S. 309, 346, 35 S. Ct. 582, 59 L. Ed. 969 (1915) (Holmes, J., dissenting). We will therefore reverse the dismissal of the petition and remand for further proceedings.


In December 1966 after a tumultuous jury trial, Dominick Codispoti and his two co-defendants, Richard Mayberry and Herbert Langnes, were found guilty of prison break and holding hostages in a penal institution. Before sentencing, Codispoti made a motion for a new trial on the grounds that his conviction was violative of both state law and the federal constitution.*fn2 Although under Pennsylvania law a new trial motion should be disposed of Prior to sentencing,*fn3 the trial court failed to rule on Codispoti's motion. The judge gave each of the defendants a lengthy prison sentence; Codispoti received a fifteen to thirty year sentence. In addition, the trial judge found the defendants guilty of several counts of criminal contempt as a result of their conduct during the trial. While the state court did not act on the new trial motion, there was considerable activity on the contempt citations, including two appeals to the Supreme Court of the United States. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971).*fn4

We are not unaware of the conduct of Codispoti and his co-defendants which precipitated the contempt citations. The transcript of the trial demonstrates that throughout the state trial the petitioner and his co-defendants conducted themselves in an unruly and disruptive manner. Indeed, the record indicates that the defendants' behavior was reprehensible. During the trial the judge was called "crazy," "a punk," "Caesar," "a dirty tyrannical old dog" and a "dirty sonofabitch." He was charged with "a tyrannical display of corruption," running a Spanish Inquisition and engaging in a conspiracy with the prison authorities. Langnes, one of the co-defendants, on at least two occasions threatened the trial judge that he would "blow off (his) head." Mr. Justice Douglas described the behavior of one of Codispoti's co-defendants "as a shock to those raised in the Western tradition that considers a courtroom a hallowed place of quiet dignity." Mayberry v. Pennsylvania, 400 U.S. at 456, 91 S. Ct. at 500. A similar comment might be appropriate in describing Codispoti's conduct, though the record reveals that his conduct was not quite as bizarre as his co-defendant's.

Yet at the outset it must be emphasized that the precious rights of due process and the writ of habeas corpus are not reserved solely for those who are polite and decorous. Indeed, the true test comes when these rights are to be guaranteed to a defendant regardless of how recalcitrant or vulgar his conduct may be.

As we noted above, Codispoti's attempts to obtain a review of his conviction for prison break and holding hostages began with a Pro se motion for a new trial submitted to the trial court Prior to his sentencing On December 12, 1966. Although almost twelve years have passed, the motion has not yet been disposed of by the state trial court. The court records suggest that while there was some initial activity, the motion has been dormant since 1967.*fn5 It is not denied by the respondent that the state court has not yet disposed of Codispoti's motion.

Our review of the court records provides no insight into the reason Codispoti's motion has never been acted on. United States Magistrate Robert Mitchell, whose report was adopted by the court below, suggested that there has been no ruling because Codispoti "apparently never pursued these matters and devoted his complete attention to his contempt convictions."*fn6

Codispoti, on the other hand, asserted that he made several attempts to obtain a ruling on his motion. In this petition he alleged that he contacted the law schools of the City University of New York and Harvard University and the Pennsylvania Prison Research Council for assistance. He also alleged that he wrote to his trial counsel, the district attorney, and the trial judge on at least seven occasions between 1970 and 1973 in order to obtain a decision. Furthermore, Codispoti specifically averred:

Both State Court Officials and Prison Officials have for the past Eleven years conspired to obstruct my right to appeal from my conviction. The trial court has ignored every effort I made to get a decision on my Motion for a New Trial. They have ignored all my correspondence up until last month (March, 1977). The Prison Officials have destroyed and waylaid my petitions and legal letters. Judge Samuel Strauss had ordered a "FREEZE" on all my correspondence with the Trial Court and will not allow me to have any pertinent record that is needed for appeal.

In addition to his motion for a new trial, Codispoti made several other attempts to obtain review of his conviction. In June 1967 he filed a Pro se petition requesting a Post-Conviction Hearing pursuant to Pennsylvania's Post-Conviction Hearing Act statute (PCHA). Pa.Stat.Ann. tit. 19 ยงยง 1180-1 to 1180-14 (Purdon Supp.1978). This motion was denied on July 18, 1967 "for the reason that the issues raised in the petition are covered under ...

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