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United States v. Follette

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT


February 20, 1970

UNITED STATES OF AMERICA EX REL. LESLIE DIREL GREEN, PETITIONER-APPELLANT,
v.
HAROLD W. FOLLETTE, AS WARDEN OF GREEN HAVEN STATE PRISON, STORMVILLE, NEW YORK, RESPONDENT-APPELLEE.

Before MEDINA, WATERMAN and SMITH, Circuit Judges.

Per Curiam:

We affirm by applying the principles set forth in United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d Cir.), cert. denied, 395 U.S. 983, 89 S. Ct. 2145, 23 L. Ed. 2d 771 (1969). There is nothing in the "totality of circumstances surrounding" the identification to justify a finding that there was any "likelihood of irreparable misidentification." Id., 406 F.2d at 220; see Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); accord, Simmons v. United States, 390 U.S. 377, 383, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Since the judgment of conviction was entered on January 21, 1959, the case is governed by the holding of the Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). There was no violation of relator's constitutional right to due process.

Affirmed.

19700220

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