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UNITED STATES EX REL. WALKER v. FOLLETTE

February 27, 1970

UNITED STATES of America ex rel. Matthew WALKER, Petitioner,
v.
Hon. Harold W. FOLLETTE, Warden of Green Haven Prison, Respondent


Mansfield, District Judge.


The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

Petitioner is presently serving a 15 to 35 year term in Green Haven State Prison, pursuant to his conviction in 1963 in the Suffolk County Court of the crimes of rape, attempted robbery, grand larceny, and possession and use of a dangerous weapon. Claiming that he was deprived of a fair trial by the prosecutor's introduction against him of two prior convictions obtained when he was without benefit of counsel, he now petitions for a writ of habeas corpus directing his release and the holding of a new trial at which the tainted convictions will not be introduced in evidence.

 Petitioner was indicted in late 1962 for the crimes of first degree rape, attempted robbery in the first degree, assault second degree, grand larceny first degree, carrying and use of a dangerous weapon, and unauthorized use of a motor vehicle. He and a co-defendant, Preston Smith, were tried by a jury and convicted in the Suffolk County Court on February 19, 1963, on the counts charging rape, robbery, larceny, and carrying and use of a dangerous weapon. Disregarding the two prior convictions, which are the occasion for the present petition, the evidence of his guilt, which included testimony of the rape victim and petitioner's own detailed signed confession, was overwhelming. On March 29, 1963, petitioner was sentenced to terms of 10 to 20 years on the rape count and 5 to 15 years on the attempted robbery count, to be served consecutively, for a total sentence of 15 to 35 years. On May 20, 1964, petitioner was re-sentenced to the same term.

 While petitioner's direct appeal was pending before the Appellate Division, the Supreme Court decided Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1965). The Appellate Division, by order dated December 21, 1964, remanded the case to the Suffolk County Court for a hearing on the voluntariness of a confession which had been introduced against petitioner at trial. People v. Walker, 22 A.D. 2d 927, 255 N.Y.S. 2d 507 (2d Dep't 1964). After the hearing the issue of voluntariness was decided against petitioner, and his conviction was affirmed, 24 A.D. 2d 1079, 265 N.Y.S. 2d 609 (1965). Leave to appeal was denied by the Court of Appeals on February 4, 1966, and certiorari was denied by the Supreme Court of the United States on October 10, 1966, 385 U.S. 864, 87 S. Ct. 121, 17 L. Ed. 2d 91.

 Petitioner has already presented the claims he makes before us to the state courts in the form of a petition for a writ of error coram nobis, which was denied on March 20, 1968. The denial was affirmed without opinion, People v. Walker, 32 A.D. 2d 813, 302 N.Y.S. 2d 510 (2d Dep't 1969), and leave to appeal was denied by the Court of Appeals on November 5, 1969. Petitioner has therefore fully complied with the exhaustion requirements of 28 U.S.C. ยง 2254.

 Use of the Tainted Convictions

 The convictions of which petitioner complains were introduced for purposes of contradicting and impeaching petitioner, who took the stand in his own defense. On direct examination, among other preliminary questions about his background, petitioner was asked by his counsel the question "Have you ever been convicted of a crime?" to which he replied "No, sir," (Tr. 419). The questioning then moved on to the circumstances of his first meeting with the complaining witness. On cross-examination, later in the same day, the following interrogation and colloquy occurred (Tr. 572-78):

 
Q. Have you ever been in Levittown, Pennsylvania?
 
A. Levittown?
 
Q. Yes, Levittown, Pennsylvania?
 
A. Yes, sir.
 
Q. And were you there in 1956?
 
A. Yes, sir.
 
Q. And how about in the Town of Bristol?
 
A. That's the same place.
 
Q. Yes, Levittown is in Bristol, right?
 
A. It's the same - yes.
 
Q. You were there then, right?
 
A. Yes, sir.
 
Q. Did you get in trouble there?
 
Mr. LAFRENIERE [defendant's attorney]: I object to the form of the question.
 
THE COURT: I'll sustain it.
 
MR. CONNORS [the prosecutor]: This is the Defendant.
 
Q. You say you were never convicted of anything; is that your story?
 
A. You said the felony.
 
MR. LAFRENIERE: I'm going to object. Just a minute, please. I'll object to the form of the question as argumentative.
 
THE COURT: (To the Reporter) Would you read the question back, please?
 
(Whereupon, the question was read back by the Reporter)
 
THE COURT: I'll allow it.
 
MR. LAFRENIERE: Exception.
 
A. I was never convicted of ...

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