Lumbard, Chief Judge, and Medina and Kaufman, Circuit Judges. Medina, Circuit Judge (dissenting).
Louis Roberts appeals from the denial of a writ of habeas corpus by the Northern District of New York for which he petitioned on the ground that his 1962 conviction in the Queens County Court for robbery, grand larceny, and assault should be nullified because he did not have at his trial a free transcript of the preliminary hearing before the magistrate, otherwise obtainable upon payment of a fee, see N.Y.Code of Crim.Proc. § 206, and thus was denied equal protection of the law. As we conclude that application of the New York law should be determined by the New York courts in view of People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730 (Dec. 30, 1966) (per curiam), we dismiss the petition without prejudice to any further determination by the district court, upon any later application, of the questions raised, in the light of further proceedings in the state courts.
At Roberts' trial, the evidence showed that on Saturday night, January 27, 1962, his victim, Nathan Waxman, had just parked his car. Roberts reached in the window, opened the door, and held a knife at Waxman's throat and demanded his money. Waxman gave him his money and as Roberts searched him for more Waxman sprang from the car and shouted for the police. Officer Charles DeCosta was nearby and responded immediately and when Waxman pointed to Roberts, who was running away, DeCosta ordered him to stop. Roberts was found with the money in his possession. DeCosta found a knife at the side of Waxman's car which Waxman identified as the knife used by Roberts.
Two days later, on Monday, January 29, Roberts and his counsel appeared at the preliminary hearing before the magistrate. After Waxman and DeCosta had testified, Roberts was held for the grand jury, and was later arraigned in March, again with counsel present. On May 14 when the case was called for trial, Roberts appeared with the same counsel. He then complained about his counsel and wished new counsel, although he said he could not afford to get his own lawyer. The judge denied his request. At the same hearing Roberts said he wanted the minutes of the preliminary hearing. After further colloquy, neither Roberts nor his counsel pressed the request for the minutes.*fn1 No other application or request for the hearing minutes was made at the trial or at any other time and the minutes were never transcribed.
Counsel requested and did have available at the trial a transcript of the grand jury testimony of Waxman and DeCosta and the complaint sworn to by Waxman on the day Roberts was arrested. At trial, counsel made no use of the grand jury minutes or the complaint in cross-examining Waxman and DeCosta. There is no reason to believe that the testimony of Waxman and DeCosta at the preliminary hearing was not substantially the same as their testimony at trial. Nor were any questions put to Waxman or DeCosta regarding their testimony at the preliminary hearing.
Roberts appealed his conviction and urged as one of the grounds for reversal his failure to obtain the minutes of his preliminary hearing. The Appellate Division affirmed without opinion, Roberts v. State of New York, 22 A.D.2d 853, 254 N.Y.S.2d 826 (2d Dep't 1964). Leave to appeal to the New York Court of Appeals was denied by Judge Fuld on January 4, 1965. The United States Supreme Court subsequently denied a petition for certiorari, 381 U.S. 956, 85 S. Ct. 1815, 14 L. Ed. 2d 727 (1965). Roberts then petitioned the District Court for the Northern District.
Although Roberts has exhausted his state remedies, we are constrained to hold that he should apply again to the state court because the Court of Appeals in People v. Montgomery, supra, has recently passed upon the effect of denying a copy of preliminary hearing minutes to an indigent defendant. While such questions as whether or not Roberts made a suitable request for the minutes and if so, whether the request was then denied by the trial judge or later abandoned by Roberts, are by no means free from doubt, it at least appears probable that the state court would now grant relief if there is a basis in the record for doing so. Compare People v. Montgomery, supra, with People v. Robinson, 48 Misc.2d 799, 265 N.Y.S.2d 722 (Sup.Ct.1965); see also N.Y. County Law, McK.Consol.Laws, c. 11, § 722-c, eff. Dec. 1, 1965.
It also seems clear that the state courts will pass upon this question in a petition for a writ of habeas corpus, see People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966). We think that whenever there is reason to believe that factual questions and their application to state law will be passed upon by state courts, the federal court should stay its hand in order to permit plenary examination by the state court. See United States ex rel. Martin v. McMann, 348 F.2d 896 (2 Cir. 1965); United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2 Cir. 1964); also Case v. State of Nebraska, 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965).
It has long been recognized that the primary responsibility for the administration of criminal justice must rest with the state courts themselves. When the constitutional necessity for federal court intervention is open to doubt, the question ought to be decided in favor of permitting a state court determination in the first instance. Such a policy is based in part upon the principle of comity, in part upon a desire to avoid unnecessary constitutional decision, and upon a belief that state courts will function best in our federal system when given a full opportunity to assume and discharge their primary responsibility.
We express no opinion on the factual or legal issues raised by the petition. We dismiss the petition without prejudice to the renewal of the questions raised in the district court and on this appeal in the light of further proceedings in the state court.
MEDINA, Circuit Judge (dissenting):
I dissent because I think relator's case was ripe for decision at the time of oral argument on November 10, 1966, that it is ripe for decision now and that he should be given relief now. To cast doubt upon relator's right to relief, bar immediate resort to the Supreme Court by application for certiorari, and then in effect remand the case to the state courts for the possible application for an uncertain state remedy seems to me to work great prejudice to appellant and to be a procedure not justified by the niceties of federalism.
The real difference between my brothers of the majority and me stems from the fact that I believe Roberts is entitled to the relief he prays ...