Moore and Anderson, Circuit Judges, and Levet, District Judge.*fn*
Fazio appeals from an order of the United States District Court for the Southern District of New York, Edward Weinfeld, District Judge, which denied appellant's petition for a writ of habeas corpus without a hearing. Judge Weinfeld granted a certificate of probable cause and leave to appeal in forma pauperis on December 15, 1964.
Appellant is presently held in custody by the Warden of Green Haven Prison, Stormville, New York, pursuant to a judgment of conviction for first degree robbery in a state court. Appellant seeks his release on the ground that his conviction was obtained in violation of his right to due process of law under the Fourteenth Amendment. Specifically, appellant claims that the District Attorney knowingly used perjured testimony and suppressed evidence beneficial to appellant.
The facts are as follows: Edward Daly, the principal prosecution witness, was an accomplice in the crime charged against appellant Fazio and another. The appellant based his petition for a writ on Daly's denial that his testimony against appellant had been motivated by an expectation of leniency. This denial appellant claims was false to the knowledge of the District Attorney who failed to disclose this to the court and to the appellant. The relevant testimony reads as follows:
Cross-Examination of Daly
"Q. Now, you were dickering for a plea, weren't you? A. I was offered a plea.
Q. Right -- and that plea was to a felony, wasn't it? A. It was.
Q. Then you decided, did you not, to look for a break -- just yes or no? A. No.
Q. In other words, you were not motivated to implicate persons charging them with crimes, with the hope for any sort of consideration?
Mr. McCabe: Object to the form.
The Court: Overruled. That is a very vital question in this case.