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January 17, 1955

Calman COOPER, Nathan Wissner and Harry A. Stein, Petitioners,
Wilfred L. DENNO, Warden of Sing Sing Prison, Ossining, New York, Respondent

The opinion of the court was delivered by: KAUFMAN

This petition for habeas corpus has been filed by Calman Cooper, Nathan Wissner and Harry A. Stein, who are presently confined in a New York State prison awaiting execution under sentences of death. This Court ordered a stay of execution pending the determination of this proceeding in order to enable it to study the record presented and the points urged.

The facts surrounding the crime for which the petitioners are presently confined have been stated with lucidity by the United States Supreme Court in a prior decision in the course of this litigation. *fn1"

 'The main office of Reader's Digest is thirty-one miles from New York City, in the relatively rural area of northern Westchester County, near the town of Pleasantville. From this secluded headquarters a truck several times each day makes a rum to and from town. On April 3, 1950, William Waterbury was driver of the 2:50 p.m. trip into Pleasantville. He picked up Andrew Petrini, a fellow employee, and various bags containing mail, about $ 5,000 in cash, and about $ 35,000 in checks, and started down the lonely country roads to town. Neither was armed. After a few hundred yards, Waterbury was cut off and halted by another truck that had been meandering slowly in front of him. He observed a man wearing a false nose and eyeglasses and with a revolver in his hand running toward him. After an unsuccessful attempt to open the door, the assailant fired one shot into Petrini's head. Waterbury was then ordered into the back of the truck where another man tied him up. His captors took the bag containing the money and checks and abandoned the truck on a side road with Waterbury bound and gagged therein. A few minutes later he was released by a passer-by and had Petrini hurried to the hospital where he died shortly from the effects of a .38 revolver bullet lodged in his skull.'

 Petitioners were found guilty of this felony murder *fn2" by a jury on December 21, 1950, after a joint trial, in the County Court of Westchester County, State of New York And were sentenced to death. On appeal, the New York Court of Appeals affirmed the judgment of conviction, without opinion, 303 N.Y. 856, 104 N.E.2d 917. The United States Supreme Court, on October 13, 1952, granted certiorari 'limited to the question as to the admissibility of the confessions', 344 U.S. 815, 73 S. Ct. 53, 97 L. Ed. 634, and on June 15, 1953, by a vote of six to three, affirmed the judgments of conviction, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522. On October 12, 1953, the Supreme Court denied an application for rehearing, 346 U.S. 842, 74 S. Ct. 13, 98 L. Ed. 362.

 On November 20, 1953, petitioners moved in the Westchester County Court for an order, in the nature of a writ of error coram nobis, vacating and setting aside the judgments of conviction on the following grounds:

 (1) That in violation and contravention of the U.S. Constitution, and the 5th, 6th and 14th Amendments thereof, and in violation of section 6 of Article 1 of The Constitution of the State of New York, petitioners were deprived of the right to counsel and to a fair trial.

 (2) That the judgments of conviction were based, obtained and predicated upon perjured testimony knowingly used by the prosecution, without which petitioners would not have been convicted.

 (3) That the prosecution suppressed evidence which exculpated, or tended to exculpate petitioners, which evidence was of a most substantial character.

 The Westchester County Court denied this motion on December 31, 1953. The Court of Appeals granted review of the order of the County Court on January 12, 1954, 306 N.Y. 678, 117 N.E.2d 355, and on March 12, 1954, the Court of Appeals, by a vote of five to two, directed that a hearing be held in the Westchester County Court 'to determine whether defendant's right to counsel and 'to' a fair trial was interfered with and impaired'. 306 N.Y. 867, 118 N.E.2d 918, 919.

 The County Court held hearings on March 30 and March 31, 1954, and at the conclusion thereof, dismissed the proceeding, and denied the motion. The Court of Appeals then reviewed the determination of the Westchester County Court, and on June 4, 1954, unanimously affirmed in an opinion by Judge Fuld; Judge Van Voorhis and Judge Dye, concurred in the result. 307 N.Y. 253, 120 N.E.2d 813.

 On November 8, 1954 the United States Supreme Court denied a joint petition for writs of certiorari. 348 U.S. 878, 75 S. Ct. 118.

 On December 15, 1954, petitioners moved in the Westchester County Court for a rehearing of their applications for writs of error coram nobis, and on December 16, 1954, their motion was denied. On January 3, 1955, petitioners moved in the Court of Appeals for reargument of their appeal, and on January 6, 1955, their motion was denied.

 On January 10, 1955, the United States Supreme Court denied the application of the petitioners for a rehearing of their joint petition for writs of certiorari. Cooper v. New York, 75 S. Ct. 301.

 It is apparent from the record that the petitioners have 'exhausted the remedies available in the courts of the State', 28 U.S.C. ยง 2254 and procedurally are properly in this court. The searching and thorough discussions of the Justices of the Supreme Court in Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, clarify the procedural aspects for the district court in this type of habeas proceeding.

 In conducting the habeas corpus proceeding, Brown makes it very clear that the Federal District Court Judge has discretion as to whether he will decide the issue solely on the printed record (if the record is ample) or on the basis of a plenary hearing with witnesses.

 'Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle -- a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Where the record of the application affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented, a repetition of the trial is not required. * * * However, a trial may be had in the discretion of the federal court or judge hearing the new application.' 344 U.S. at page 463, 73 S. Ct. at page 410.

 The wide power *fn3" of the District Judge to decide upon which procedure to follow is emphasized by Justice Frankfurter in his concurrence:

 'The prior State determination may guide (the District Judge's) discretion in deciding upon the appropriate course to be followed in disposing of the application before him. The State record may serve to indicate the necessity of further pleadings or of a quick hearing to clear up an ambiguity, or the State record may show the claim to be frivolous * * *.' 344 U.S. at page 500, 73 S. Ct. at page 443.

 On the question as to whether the District Court should rely upon the record or hold a hearing, the Court states:

 'If the issues are simple, or if the record is called for and is found inadequate to show how the State court decided the relevant historical facts, the District Court shall use appropriate procedures, including a hearing if necessary, to decide the issues. Such flexibility in the inquiry into the facts is necessary.' 344 U.S. at page 503, 73 S. Ct. at page 344.

 'When the record of the State court proceedings is before the court, it may appear that the issue turns on basic facts and that the facts (in the sense of a recital of external events and the credibility of their narrators) have been tried and adjudicated against the applicant. Unless a vital flaw be found in the process of ascertaining such facts in the State court, the District Judge may accept their determination in the State proceeding and deny the application. On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding.' 344 U.S. at page 506, 73 S. Ct. at page 446.

 In Smith v. Baldi, 1953, 344 U.S. 561, 73 S. Ct. 391, 97 L. Ed. 549, the Court held that is is not an abuse to deny a plenary hearing in the Federal Court on habeas where the state trial and appellate court records show a fair judicial hearing on the precise issue of fact which is now contested.

 From these weighty authorities, it may be concluded:

 (1) In the instant case since the defendants received a hearing in the State County Court on their contentions, and the Court of Appeals reviewed these contentions in a complete and well considered opinion, it certainly would not be an abuse of discretion to deny a plenary hearing under the criteria set forth by Justices Reed and Frankfurter in Brown.

 'Where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state's resolution of the issue.' 344 U.S. at page 458, 73 S. Ct. 408.

 In Brown, the Supreme Court expressly affirmed the trial court's denial of a plenary hearing and its decision based solely upon the printed record. The Court held that the District Court did not err when it took no evidence and heard no argument on the Federal Constitutional issues.

 (2) On the other hand, since the District Court is empowered to re-hear the facts if it so desires, the District Judge has the power to reach a conclusion adverse to that reached by the Court of Appeals of New York on the very same record that it used. *fn4" In Leyra v. Denno, 1954, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed. 948, this is in effect what the Supreme Court held the District Court had power to do when the Supreme Court upset the New York Court of Appeals findings solely on the basis of the printed record that the New York Court had before it.

 (3) The District Court is also empowered to hold a plenary hearing if it feels that the printed record is an inadequate basis upon which to decide the factual issue presented to it. This was expressly permitted as within the District Court's discretion in Speller v. Allen, one of the companion cases to Brown, 344 U.S. 443, at page 478, 73 S. Ct. 397, at page 418, 97 L. Ed. 469.

 'In some cases the State court has held a hearing and rendered a decision based on specific findings of fact; there may have been review by a higher State court which had before it the pleadings, the testimony, opinions and briefs on appeal. It certainly would make only for burdensome and useless repetition of effort if the federal courts were to rehear the facts in such cases.' 344 U.S. at page 504, 73 S. Ct. at page 445.

 The instant litigation comes within this doctrine, and, hence, I conclude that a plenary hearing is not necessary. As in Brown v. Allen, the complete record is now before the court, and it is entirely adequate for the disposition of the issues here presented. *fn5" Moreover, the parties have agreed that the Court should not conduct a plenary hearing but should ...

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