Appeal from an order of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing sua sponte petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Kearse, Cardamone and Winter, Circuit Judges.
Petitioner Benny Williams appeals from an order of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing sua sponte petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Williams was convicted of burglary in the second degree and attempted robbery in the second degree, following a jury trial in New York State Supreme Court, and he was sentenced to concurrent prison terms of four to eight years and two and one-half to five years. It is from his detention under this sentence that petitioner seeks relief.
After examining the habeas petition in light of Rule 4 of the Rules Governing Section 2254 Cases, we disagree with the district court's conclusion that Williams' application was deficient on it face and thus find that sua sponte dismissal was inappropriate. Nonetheless, after reviewing the record, it is our view that petitioner's application for a writ of habeas corpus should be dismissed on the merits.
Shortly after midnight on October 23, 1979 Redzo Kukic, the resident superintendent of an apartment building at 878 West End Avenue in New York City, heard the buzzer to his apartment. Upon opening his door to see who was in the vestibule, he saw the petitioner, Benny Williams, pressing the buzzer and pushing against the locked inner door. Kukic told Williams to leave the building, and, when Williams refused, Kukic went to call the police.
While Kukic was calling the police, Elizabeth Reed arrived at the apartment building, where she was a resident, and encountered petitioner. Williams asked Miss Reed if she knew a person named Hall who lived on the tenth floor, and Reed told him that she did not. Miss Reed then opened the locked security door, proceeded into the lobby and stepped into the elevator. Williams followed her. According to Miss Reed's testimony at Williams' trial, once the elevator doors closed Williams hit her several times in the face and "said something about money," although she could not recall the precise words. Reed told him that she had no money, and Williams responded by threatening to kill her if she screamed. At that moment, the elevator doors opened on the tenth floor and Miss Reed ran out, screaming for help as she was being pursued by Williams. Several of the tenth floor tenants heard her scream and observed her running toward the stairwell with Williams chasing her. One tenant called the police while two others followed the young woman and her assailant into the stairwell and down the stairs.
Moments later Police Officer Norman Lamster arrived at the scene. The first thing he saw was Miss Reed running out of the building with blood dripping from her nose. She told the officer that she was being chased, so Lamster proceeded directly into the apartment building where he spotted petitioner. In the presence of Reed and several other witnesses, Officer Lamster arrested him.
Following a jury trial in State Supreme Court, New York County, Williams was convicted of second degree burglary and second degree attempted robbery. The Appellate Division, First Department, unanimously affirmed the conviction, and the New York Court of Appeals subsequently denied petitioner leave to appeal. Williams then sought federal habeas relief under 28 U.S.C. § 2254 by filing with the district court his pro se petition dated December 29, 1982. His application recited four grounds for relief, only one of which was of constitutional dimension:
The people failed to prove beyond a reasonable doubt, as a matter of law, that petitioner specifically intended to commit a larceny as charged under the first and second counts of the indictment and failed to prove beyond a reasonable doubt and as a matter of law, that petitioner specifically intended to commit a robbery under the third count of the indictment.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, Judge Knapp of the Southern District entered an order dismissing the petition on March 1, 1983. The order did not require service of the petition on the State, nor did it require the State to file an answer. Instead, with respect to the lone constitutional claim, the district court held merely that petitioner did "no more than make a conclusory statement with no factual support." Later, on March 14, 1983, the district judge granted a certificate of probable cause of appeal as required by Fed. R. App. P. 22(b).*fn1
Rule 4 of the Rules Governing Section 2254 Cases provides for preliminary consideration of habeas petitions by district court judges. In pertinent part, the rule states "if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal . . . ." Given the increasing number of pro se petitions filed each year -- many of which are inartfully drafted -- we can appreciate a busy district judge's possible predilection toward summary dismissal. Nevertheless, Rule 4 does not confer unbridled discretion to dispose of all such habeas applications sua sponte. Summary dismissal is appropriate only in those cases where the pleadings indicate that petitioner can prove no set of facts to support a claim entitling him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
In Ron v. Wilkinson, 565 F.2d 1254 (2d Cir.1977), we gave the pleading requirement of Rule 4 a liberal construction. Specifically, our holding emphasized that district courts should not summarily dismiss prisoner petitions containing sufficient allegations of constitutional violations. Id. at 1258-59. See Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 989-90 (2d Cir.1982) (sua sponte dismissal to pro se prisoner petition before service of process and filing of a response by the state is strongly disfavored). Requiring a responsive pleading is far from a mindless formality preceding a ...