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November 1, 1968

UNITED STATES of America ex rel. Joseph D. HARDY, Petitioner,
Hon. Daniel McMANN, Warden, Auburn Prison, Auburn, N.Y., Respondent

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Petitioner Joseph D. Hardy, presently confined in Auburn State Prison, Auburn, New York, was convicted by a jury of murder in the second degree and burglary in the third degree. The County Court of Westchester County, on June 2, 1965, imposed concurrent sentences of twenty years to life and five to seven years, respectively. The conviction was affirmed by the Appellate Division and the New York Court of Appeals. *fn1" Petitioner now contends that his constitutional rights were violated.

 Specifically, petitioner claims denial of due process by (1) errors of the trial court in ruling on evidence and in its charge; (2) failure to hold a preliminary felony hearing on the question of probable cause; (3) failure of the police to warn of his rights before he confessed; (4) admission of his confession without a prior hearing on voluntariness; (5) police deception in interrogating him and (6) incompetent counsel. His claims are all without merit.

 The claimed errors of the trial court consist of the admission of testimony regarding the victim's outcry, the sustaining of an objection to petitioner's attempt to explain the confession, and the failure to charge the jury on the issue of voluntariness in the language of § 395, New York Code of Criminal Procedure.

 The testimony of the victim's outcry was admitted under the spontaneous declaration exception to the hearsay rule. Petitioner's contention that the trial court denied him the opportunity to explain his confession is inaccurate. He could have put forward any explanation of the confession upon a voir dire at the time the confession was offered. *fn2" He did not do so, although the record reveals that at other times during the trial he effectively used this procedure. Actually, he eventually did explain to the jury that he confessed because he was told by the police that he would be allowed to see the victim. *fn3"

 It is unnecessary, however, to decide whether the state court committed reversible error in allowing testimony of the outcry or in refusing to allow petitioner to explain his confession, because errors in a state court's evidentiary rulings are not grounds for federal habeas corpus relief. *fn4"

 The alleged error in not charging the jury in the language of § 395 of the New York Code of Criminal Procedure on the issue of voluntariness does not raise a federal question, for, as we shall see, there was no real issue of voluntariness in the case. In any event, the court's charge adequately instructed the jury that it must be convinced beyond a reasonable doubt that the admissions were not obtained "under the influence of fear produced by threats, whether expressed or implied." *fn5" This is essentially the language of § 395 omitting only the nonconstitutional requirement of corroborative proof.

 Petitioner's claim (2) must be rejected because it is not a violation of a federally-protected right for a state to deny an accused a preliminary hearing on the existence of probable cause. *fn6"

 Petitioner's claims (3), (4) and (5) relate to his confession which the trial court allowed in evidence. We now consider those claims.

 As to claim (3), petitioner argues that although his case was tried prior to Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966), it was tried after Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and therefore, he contends, Escobedo applies. Petitioner interprets Escobedo as requiring the police to warn a suspect of his right to counsel, to remain silent and that anything he says may be used against him. Petitioner alleges that he was denied due process because he was not given these warnings.

 Since his trial took place before the decision in Miranda, that case does not apply to his case. *fn7" Petitioner is correct in arguing that Escobedo applies, but we must reject his interpretation of Escobedo. Petitioner asks us to hold that both Escobedo and Miranda require the same three warnings to be given to a suspect who becomes the focus of a police investigation. To so hold would render meaningless the Supreme Court's decision applying Miranda prospectively.

 The exact scope of Escobedo is unclear, but if the Supreme Court were of the opinion that Escobedo required the police to warn a suspect of his so-called " Miranda rights," it would not have been necessary for the court to concern itself with the prospective or retroactive application of Miranda.8

 The admission of petitioner's confession is therefore not a violation of due process just because he was not warned of his Miranda rights.

 As to claim (4), petitioner argues that he was denied protection against self-incrimination because he was not told that the victim was dead prior to giving his confession. Actually, petitioner is claiming that his confession ...

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