Lumbard, Chief Judge, Waterman and Hays, Circuit Judges.
A New York county grand jury indicted appellant Lorenzo Catanzaro jointly with Warren Hill, Jerry McChesney, and Joseph Lonergan for murder in the first degree. A motion to sever the trial of Lonergan was granted. Lonergan became a prosecution witness. The motions of Catanzaro, Hill and McChesney for severance were denied. They were tried in the Court of General Sessions of the County of New York and convicted. McChesney was sentenced to life imprisonment; Catanzaro and Hill were sentenced to death. The death sentences were subsequently commuted to life imprisonment.
Catanzaro and Hill appealed to the New York Court of Appeals. Hill's conviction was affirmed with three judges dissenting; Catanzaro's was affirmed by a unanimous court. People v. Hill, 13 N.Y.2d 842, 242 N.Y.S.2d 358, 192 N.E.2d 232 (1963).
The Supreme Court granted Catanzaro's petition for certiorari, vacated the judgment, and remanded the case for further proceedings not inconsistent with Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), decided the same day. Catanzaro v. New York, 378 U.S. 573, 84 S. Ct. 1931, 12 L. Ed. 2d 1040 (1964).
The New York Court of Appeals, on remand, remitted the case to the trial court for proceedings consistent with People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), to determine whether Catanzaro's confessions, which were admitted at his trial, were voluntary. People v. Hill, 15 N.Y.2d 722, 256 N.Y.S.2d 933, 205 N.E.2d 199 (1965).
The trial court held the required hearing and found Catanzaro's confessions to have been voluntary. The New York Court of Appeals affirmed, 17 N.Y.2d 185, 269 N.Y.S.2d 422, 216 N.E.2d 588, and the Supreme Court denied certiorari, 385 U.S. 875, 87 S. Ct. 152, 17 L. Ed. 2d 102 (1966).
Catanzaro then applied for a writ of habeas corpus, claiming that his conviction was invalid because it was based on (1) the introduction into evidence of involuntary confessions, (2) an illegal search of his hotel room prior to his arrest, and (3) perjury of one of the prosecution's major witnesses. His application was denied; the order of denial is before us on this appeal.
Defendant Hill, meanwhile, relying on the trial court's refusal to grant his motion to sever his trial from the trial of McChesney and Catanzaro, both of whose confessions were introduced at the trial, successfully sought a writ of habeas corpus in the Southern District of New York. United States ex rel. Hill v. Deegan, 268 F. Supp. 580 (S.D.N.Y.1967). Catanzaro then brought a second habeas corpus petition, arguing that the trial court's failure to grant his motion for a separate trial deprived him of the right to a fair trial, and that his sentence ought also be vacated. The petition was denied solely on the ground that the trial transcript, an examination of which was deemed necessary to reach a determination, was before this court and was therefore not available to the district court. That order of denial is the second of the two orders appealed from here.*fn1
Richard Valk, a United Parcel Service driver, was shot and killed on May 17, 1961, during the attempted robbery of his truck on 53rd Street at Second Avenue in Manhattan. At appellant's trial Randolph Gibbs, a prosecution witness, testified that he had turned onto 53rd Street in his employer's automobile just as the attempted robbery was being committed. He was forced to slow down as he was approaching a United Parcel Service truck because a car, identified by him as a black 1960 Oldsmobile convertible, was double parked a short distance in front of the truck. Upon slowing down Gibbs saw one of the defendants scuffling with the driver of the UPS truck, and a second defendant coming out of the rear of the truck. The scuffling continued for about 10 seconds. Gibbs saw one of the defendants raise a gun; he heard two shots. The UPS driver fell to the ground. The two defendants ran in front of Gibbs' car and jumped into the Oldsmobile. Appellant was behind the wheel of the Oldsmobile.*fn2
Gibbs noted the license number of the Oldsmobile as it sped away. He stopped at 47th Street and Park Avenue to report the shooting to two policemen and he wrote down the license number of the Oldsmobile for them.
Police investigations disclosed that a large number of parking tickets had been issued within a short period of time to an Oldsmobile with the license number reported by Gibbs. All the tickets pertained to an area of approximately 35 ...