The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
On the hot summer evening of August 23, 1959, teenage gang warfare broke out in New York City's lower East Side, resulting in the homicide by shooting of one Theresa Gee and several felonious assaults, including the stabbing of one Julio Rosario in Forsyth Park. A group of youthful suspects were rounded up by New York City police and held in the second floor squad room of the 9th Precinct, East 5th Street, for questioning. As part of the round-up New York City Patrolman Okpych, at approximately 11:00 P.M. that evening, went to the home of petitioner, Miguel Castro, a 17-year old Puerto Rican youth of "dull, normal" intelligence (full scale IQ of 83), who lived with his mother at 117 East 2nd Street, about three blocks away from the station house, took petitioner into custody and brought him to the station house. There he was first placed in the squad room with other suspects and then transferred to a smaller side room, where he was kept incommunicado and under guard by at least one policeman for the next 10 to 11 hours, without food, water, sleep or independent counsel. Here he was intermittently interrogated, without any warning or advice as to any of his Constitutional rights, by various police officers until at approximately 11:15 A.M. the next day, August 24, 1959, he gave a statement to a New York County Assistant District Attorney, recorded in question and answer form, admitting the stabbing of Julio Rosario. Thereupon he was placed under arrest, arraigned before a magistrate, and committed to jail.
Following Rosario's death on August 25, 1959, petitioner was indicted for first degree murder, tried before a jury which found him guilty on June 22, 1960, after which he was sentenced to a term of 25 years to life, now being served by him in Auburn State Prison, Auburn, New York. At petitioner's trial an important piece of incriminating evidence against him was his 18-page formal "question and answer" statement, which was admitted into evidence by the Court over his counsel's objection that it was involuntary and coerced, following which his counsel also unsuccessfully moved to have it stricken and for an instruction to the jury that it be disregarded.
Petitioner appealed his conviction. While his appeal was pending, the United States Supreme Court handed down its historic decision in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), to the effect that a trial court must hold a preliminary hearing on the issue of voluntariness and permit a confession to go to the jury only after independently determining that it is voluntary. This decision being retroactive, see Johnson v. State of New Jersey, 384 U.S. 719 at 727, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), the New York Court of Appeals in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), held that as to trials already concluded a Jackson-type preliminary hearing would be accorded except "where a confession was admitted without any objection by the defendant or any assertion by him or his witnesses as to voluntariness".
While his appeal was pending, petitioner moved unsuccessfully for a remand of his case to the trial court for a preliminary hearing on voluntariness. On March 22, 1966, the Appellate Division affirmed the conviction, People v. Castro, 25 A.D.2d 718, 269 N.Y.S.2d 371 (1966). Upon further appeal the Court of Appeals, affirming the conviction, refused a remand for a Jackson-Huntley type preliminary hearing, holding that petitioner's right to such a hearing had been waived by the fact that although his counsel had made timely objections to the introduction of the confession as involuntary and coerced and had unsuccessfully moved to strike it and for an instruction to the jury to disregard it, he had failed, at the conclusion of the trial, to request a charge to the jury (pursuant to § 395 of the New York Code of Criminal Procedure) on the issue of voluntariness and, after the trial judge commented that he saw no bona fide issue of voluntariness, had stated that petitioner did not contend the statements to be involuntary. 19 N.Y.2d 14, 277 N.Y.S.2d 644, 224 N.E.2d 80 (1966), certiorari was denied by the United States Supreme Court, 387 U.S. 914, 87 S. Ct. 1702, 18 L. Ed. 2d 638 (1967).
On May 29, 1967, petitioner filed his petition here for a writ of habeas corpus, following which this Court, in an opinion filed on October 3, 1967, held (1) that petitioner had not waived or deliberately by-passed a federal right retroactively available to him under Jackson v. Denno, since he had made timely objections to the introduction of the statement at his trial, contending that it was involuntary and coerced, and (2) that his counsel's failure to insist upon a charge to the jury under Criminal Code § 395 did not constitute side-stepping of state procedures, since by that stage of trial the confession had already been admitted over objection and was before the jury so that such a charge would not have enabled the trial judge to accord to petitioner his retroactive right to a preliminary Jackson-Huntley type hearing, in which he might testify before the Court alone on the issue of voluntariness without waiving his privilege against self-incrimination, Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (Decided 3/18/68), which would permit him to prove to the trial judge that voluntariness had not been shown and that the confession should not go to the jury. Without having the benefit of such testimony, the trial judge stated that he saw no bona fide issue of voluntariness and hence notwithstanding earlier timely objections was unwilling to withdraw the confession from the jury.
Having concluded that petitioner did not waive his right to a preliminary hearing to determine whether his statement should be withheld from the jury on the ground that the State had not established that it was voluntary, this Court could have directed that such a hearing be held by the state court, see Sims v. Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1967); Stevenson v. Boles, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); United States ex rel. Gomino v. Maroney, 231 F. Supp. 154 (W.D.Pa.1964), or could itself have held a plenary hearing to resolve the issue, a procedure sanctioned under certain circumstances. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Ledbetter v. Warden, 368 F.2d 490 (4th Cir. 1966), cert. denied, 386 U.S. 971, 87 S. Ct. 1162, 18 L. Ed. 2d 130 (1967); see United States ex rel. Carafas v. LaVallee, 334 F.2d 331, 334 (2d Cir. 1964). Townsend, Ledbetter and Carafas presented situations in which the trial had taken place substantial periods prior to the habeas petition (eight years, six years and four years, respectively) so that it was not likely that the matter would have been very fresh in the mind of the trial court. Moreover, the latter two cases presented occasions on which state law clearly indicated that petitioner could not obtain further redress of his claims because he had violated a procedural rule.
While the line between those cases remanded to the state courts for a hearing and those in which the hearing has been held in the federal court is not crystal clear, the Supreme Court has indicated, Henry v. State of Mississippi, 379 U.S. 443, 452, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965), that when a federal court concludes that a state procedural rule precludes a hearing to determine a constitutional claim and the state court has indicated unwillingness to make such a determination in violation of its rule, the federal courts, in the interest of harmonious federal-state relations, should hold the hearing rather than put pressure upon the state court to take action that is procedurally distasteful to it. Moreover, the habeas petitioner's interest in not having to face the monstrous procedural maze involved in repetitious shuttling between state and federal forums in order to secure his constitutional guarantees is an appropriate consideration. See Roberts v. LaVallee, 389 U.S. 40, 42, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967).
Castro was tried nearly eight years ago. His right to a Jackson-Huntley type preliminary hearing has been repeatedly denied by the New York state courts on the ground that his appointed counsel's statement to the trial judge declining to submit the voluntariness issue to the jury constituted a waiver, despite Castro's having objected to the introduction of the statements and his having moved to strike the statements following their admission into evidence. The New York courts' resolution of the waiver issue was not only inconsistent with federal standards, but was contrary to the test laid down in Huntley because Castro had objected to the admission of his confession. Under these circumstances, and without any desire to preempt the functions and criminal procedures established by the New York state courts, for which this Court has profound respect, this Court reluctantly concluded that since the state courts, after full review, had in effect established a procedure which denied Castro the preliminary hearing mandated by the United States Constitution in this case, the voluntariness issue was an appropriate one for resolution by this Court. To this end, the Court held a full and plenary hearing on the voluntariness issue.
A threshold question is the burden of proof as to voluntariness. In 1966 Congress amended the habeas procedure to provide:
"And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous." (28 U.S.C.A. § 2254(d))
Subparagraphs (2), (6) and (7) provide as follows:
"(2) that the factfinding procedure employed by the State court was not adequate to afford ...