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June 26, 1969

UNITED STATES ex rel. Jack JAMES, Petitioner,
Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

 Petitioner, currently serving a twenty to twenty-five year sentence at the Green Haven state prison following his conviction after trial by jury for kidnapping, seeks his release upon a federal writ of habeas corpus. *fn1" He charges that his conviction was unconstitutionally tainted by the admission into evidence of his station house identification by Carl Moody, the kidnapping victim, two months after the event. Specifically, petitioner alleges that at the station house Moody at first did not identify him, but after an interval thought petitioner might be his assailant; that Moody then added he would like to see petitioner freshened up, wearing a hat and hear him speak the word "levelling," an expression one of his two kidnappers had used. Thereupon petitioner alleges he was required to wash his face, comb his hair, put on a hat and coat, and that in response to the question, "Are you levelling with us, Jack?" petitioner answered, "Yes, I'm levelling with you," whereupon Moody positively identified petitioner as one of his two assailants. Earlier that day, one Albert Brust, following his arrest on another charge, admitted his participation in the Moody incident and named petitioner as his confederate. Brust thereafter pled guilty to the charge, but, as hereafter related, when called by petitioner as a witness at the trial, testified that another had been his associate in the crime.

 The jury could have found that Brust called at Moody's home in response to a newspaper advertisement that his car was for sale; that after inspecting the car Moody and Brust got into it for a demonstration drive; that Brust, after driving a while, brought the car to a stop, pointed a gun at Moody, and within a minute petitioner appeared and opened the door of the car and also pointed a gun at Moody; that petitioner entered the car, and with Moody in the center and Brust at the wheel they travelled along Southern State Parkway about an hour where, at a given point, Brust left petitioner and Moody in the area while he went off to sell the car; that during Brust's absence Moody and petitioner walked along a public highway while petitioner had Moody covered with a gun; that Brust, having failed to sell the car, returned and picked up Moody and petitioner; that Moody was returned to his home with his car more than three hours after Brust's initial appearance there.

 At the trial Moody testified that over the three-hour period he had seen petitioner clearly, observed his characteristics and heard his voice; that even though the incident occurred at night, he had ample opportunity to observe the petitioner because of gas station illumination when they stopped for gas, as well as that provided by the map light in the car, and when he struck a match, providing a light for petitioner's cigarette.

 Brust, already having commenced service of his sentence, was called by petitioner as a defense witness. He acknowledged before the jury his plea of guilty to the charge, but denied petitioner had been his accomplice, who he testified was known to him only as "Bob," whose address he did not know and whom he had seen only twice, the first time a week before the holdup. Brust conceded that he had known petitioner a long time and also admitted that he had informed the police upon his arrest that his companion in crime had been petitioner and not "Bob." The jury could have disbelived Brust, as it could have disbelieved petitioner's denial and petitioner's alibi witnesses.

 Petitioner unsuccessfully pressed his claim on direct appeal to the Appellate Division, which affirmed the judgment of conviction without opinion, *fn2" and to the Court of Appeals, which affirmed without opinion. *fn3" An application for a writ of error coram nobis, based upon Moody's alleged perjurious testimony, was denied in March, 1960, in the Queens County Court, the order of denial was affirmed by the Appellate Division, *fn4" and the Court of Appeals denied leave to appeal.

 Petitioner has sought the federal writ twice before. In 1963, he raised as his primary contention the claim that the testimony of the complaining witness was so filled with inconsistencies appearing on the face of the record as to compel a conclusion of perjury. Judge Palmieri, in dismissing the petition, concluded that the jury could have found the witness positive of his identification and confused as to certain details, without thereby raising a reasonable doubt of petitioner's guilt, let alone a suggestion that the witness had perjured himself. Petitioner also claimed that as a direct result of a lengthy delay before arraignment, he was identified without the benefit of a lineup. Judge Palmieri rejected this claim as "without merit" and "not [rising] to the status of a claim of constitutional deprivation." *fn5"

 One year ago petitioner brought a second application for the writ, this time making the charge that forms the basis of the present petition: that at the station house the complainant at first could not identify petitioner, but identified him only on the second attempt, after improper police conduct designed to persuade Moody that they had the guilty party. The essence of petitioner's charge was that Moody perjured himself, and the State knowingly sponsored perjury by suppressing the fact that Moody had at first said petitioner was not the man. Judge Palmieri, assuming that petitioner must have conveyed these matters of first-hand observation to his trial counsel, concluded, first, that at trial Moody neither said nor implied that he had identified petitioner on the initial confrontation, and second, that counsel deliberately by-passed inquiry into the first confrontation after the trial court warned him about "opening the door." *fn6" This Court has reviewed the entire trial minutes, which demonstrate beyond question the correctness of Judge Palmieri's determinations.

 The present application is a renewal of the earlier charges rejected by Judge Palmieri, but in different garb. Petitioner justifies his renewal on the basis of alleged newly discovered evidence. This evidence, he says, is contained in the report, hitherto unavailable to him, of his state parole officer, who was present at the station house identification. A report, which is dated about a week after the station house confrontation, appears as an exhibit to the affidavit of petitioner's counsel. In relevant portion it states:

"Present at the 105th squad at this time also was the complainant, Mr. Moody, who had already seen the parolee [petitioner]. Mr. Moody stated that he was quite sure that this was the second individual who had walked him along the road in Nassau County. Mr. Moody stated that the voice, cheek bones and carriage were the same but that he would like to see the subject washed up and dressed in the herring bone coat which Lt. Sloan had previously taken from the subject's home.
"Mr. Moody made a special point of asking whether the subject could not be induced to use the word 'level' or 'leveling' [,] a word which the individual who had taken him out of the car had used very frequently.
"On the request of Lt. Sloan, the parole officer got the subject into conversation concerning his acquaintanceship with Brust, and in conjunction with Lt. Sloan, finally managed to have the subject use the above mentioned words. Thereupon, without any hesitation Mr. Moody, who was on the far end of the room, sprang up and stated that he was positive that this was the individual who had assisted in his being held up."

 The parole report in no way supports petitioner's charges. It does not corroborate the claim that Moody at first failed to identify petitioner as the guilty party; to the contrary, it brings to light the additional information, not previously in the record, that Moody all but identified petitioner the first time he saw him in the station house. Because the petition now before us thus fails to set forth a new ground not previously presented and determined by a federal court, it may be dismissed with prejudice, without consideration of the merits, provided that the ends of justice would not be served by further inquiry. *fn7" Justice does not require such further inquiry.

 The station house confrontation was not unlawful per se. While a one-to-one identification setup between suspect and witness has now been questioned, *fn8" each case must turn upon its own facts in determining whether the procedure was so unfair as to amount to a denial of due process. Considered against the "totality of the circumstances surrounding" the confrontation, *fn9" it cannot be said that the identification procedure in this instance was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," *fn10" and to constitute a denial of due process. To the contrary, the record indicates a sincere purpose on Moody's part to exclude any ...

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