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UNITED STATES EX REL. CARRAWAY v. MCMANN

January 6, 1969

UNITED STATES ex rel. James CARRAWAY, Relator-Petitioner,
v.
Daniel McMANN, Warden of Auburn State Prison, Auburn, New York, Respondent



The opinion of the court was delivered by: COOPER

MEMORANDUM

 COOPER, District Judge.

 Petitioner, applying pro se to this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, is presently confined under a sentence of life imprisonment in Auburn State Prison, New York, following his conviction by a jury for the crime of first degree murder. Petitioner was tried jointly for that offense in 1953 in the former Court of General Sessions, New York County, with co-defendant Thomas Green.

 Based upon the papers before the Court and the 1500 page record of petitioner's trial, certain facts are undisputed. At the outset of trial, petitioner and his co-defendant moved for a severance on the ground that each defendant had made a confession which implicated his co-defendant and that each claimed his confession was illegally obtained through coercive methods employed by the police department. *fn1" Both motions were denied. An extensive voir dire was held regarding the voluntariness of the confessions, following which the court held that question to be an issue of fact for the jury; the confessions were received in evidence. *fn2" With respect to co-defendant Green's confession, the jury was cautioned that it could only be used in considering the guilt of Green. *fn3"

 After all parties rested, but prior to the summations, the trial judge permitted the case to be reopened and co-defendant Green to take the stand. He recanted his previous testimony that he was innocent and his confession coerced, and again confessed, in substantially the same terms as his original confession, to having participated in the murder. Petitioner Carraway's objection that the jury should be instructed that Green's statements were not binding upon Carraway was overruled, the trial judge stating that what Green testified to while a witness and subject to cross-examination may be used in deciding the guilt or innocence of either or both of the defendants. *fn4" Carraway was afforded an opportunity, which he exercised, to cross-examine Green.

 Following petitioner's summation and out of the presence of the jury, Green withdrew his plea of not guilty and pleaded guilty to second degree murder. Petitioner was convicted of murder in the first degree and sentenced to life imprisonment on March 6, 1953.

 The judgment of conviction was unanimously affirmed without opinion by the Appellate Division. People v. Carraway, 20 A.D.2d 968, 249 N.Y.S.2d 679 (1st Dept. 1964). *fn5" The New York Court of Appeals withheld determination of the appeal and remitted the case to the Supreme Court, New York County, for a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), to determine the voluntariness of his confession introduced against him at his trial. People v. Carraway, 15 N.Y.2d 763, 257 N.Y.S.2d 336, 205 N.E.2d 530 (1965). On June 15, 1965 a Huntley hearing was held in the Supreme Court, New York County, and by order dated August 13, 1965 Judge Irwin D. Davidson denied petitioner's motion to exclude his confession as involuntarily made. In an order dated June 16, 1965 Judge Davidson also denied petitioner's application for a writ of error coram nobis which alleged co-defendant Green was promised leniency in return for his testimony implicating petitioner. Appeal from said order is noted as still pending in the Appellate Division, First Department.

 Subsequently, the New York Court of Appeals granted a motion to restore to the calendar petitioner's direct appeal from his judgment of conviction. People v. Carraway, 19 N.Y.2d 600, 278 N.Y.S.2d 387, 224 N.E.2d 883 (1967). After reargument at which petitioner raised the same contentions now pressed before us on habeas corpus, judgment of conviction was affirmed without opinion. People v. Carraway, 19 N.Y.2d 767, 279 N.Y.S.2d 524, 226 N.E.2d 312 (1967).

 Petitioner asserts violations of the Fifth, Sixth and Fourteenth Amendments contending that the trial court committed reversible error in:

 I. denying his motion for severance of his trial from that of his co-defendant;

 II. permitting reopening of the case so that his co-defendant might give further testimony;

 III. improperly instructing the jury as to the extent to which it might consider co-defendant's testimony as evidence against petitioner;

 IV. permitting the confessions of petitioner and his co-defendant to be received into evidence;

 V. allowing petitioner's signature appearing on an affidavit that he was indigent to be used as ...


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