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February 7, 1972

UNITED STATES of America ex rel. Samuel MONTGOMERY, Petitioner,
Hon. Vincent R. MANCUSI, Superintendent, Attica Correctional Facility, Stormville, New York, Respondent

Bonsal, District Judge.

The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Petitioner, Samuel Montgomery, presently incarcerated in the New York State Correctional Facility at Attica, New York, seeks a writ of habeas corpus releasing him from confinement on the ground that certain statements taken from him following his arrest, which were used at his murder trial, were involuntary and taken in violation of his Federal constitutional rights.

 On August 2, 1957 at about 11:00 P.M. on Prospect Ave. in the Bronx, petitioner, Russell Corley and Robert May got into an argument with George Marshall and Richard Vaughn, two youths they had never seen before. The argument accelerated into a street fight and culminated in the fatal stabbing of Marshall. At about 2:00 A.M. on August 3, 1957, petitioner's sixteenth birthday, petitioner and Corley were taken into custody and interrogated at the 42nd Police Precinct about the stabbing of Marshall. Later that morning, at about 6:00 A.M., May was also taken into custody and interrogated. All three youths were indicted for first degree murder, and on November 16, 1957, after a jury trial, petitioner and May were convicted of second degree murder and Corley was acquitted. On December 30, 1957, petitioner and May were sentenced to a prison term of 25 years to life. May appealed, and the Appellate Division holding that the evidence against him was insufficient to establish he had formed an intent to kill, reduced the crime of which May was convicted to manslaughter in the second degree and reduced May's sentence from 25 years to life, to 7 1/2 years to 15 years. People v. May, 9 A.D. 2d 508, 195 N.Y.S. 2d 792 (1st Dept. 1960). Petitioner did not appeal his conviction following trial.

 After the denial of a coram nobis petition in the State courts, and the denial of a habeas corpus petition in this court, on June 20, 1966 petitioner was afforded a Huntley hearing in New York Supreme Court, Bronx County, before Judge McCaffrey, the judge who presided at his trial. By opinion dated June 29, 1966, Judge McCaffrey held that "the admissions of defendant introduced into evidence at the trial were voluntarily made by the defendant." Judge McCaffrey's decision was affirmed without opinion by the Appellate Division, 30 A.D. 2d 644 (1st Dept. 1968), and leave to appeal to the Court of Appeals was denied on June 19, 1968. On June 20, 1969, pursuant to People v. Montgomery, 24 N.Y. 2d 130, 299 N.Y.S. 2d 156, 247 N.E. 2d 130 (1969), petitioner was resentenced in order to afford him the right to appeal his conviction. The Appellate Division affirmed his conviction without opinion, 35 A.D. 2d 782 (1st Dept. 1970), and on October 30, 1970 petitioner was denied leave to appeal to the New York Court of Appeals.

 Both petitioner and respondent agree that in view of the Huntley hearing, no hearing is required in this proceeding. Petitioner contends, and respondent denies, that the evidence at the trial and the Huntley hearing establish that his statements were involuntarily made as a matter of law.

 In issue are petitioner's statements to Detective McVeigh, the officer in charge of the investigation, and Assistant District Attorney Scheer, which statement was transcribed by a stenographer. At the trial, Detective McVeigh testified that petitioner had said that he stuck his knife between Marshall's shoulders and that before the incident he told May that he had his knife and was ready to use it. Petitioner's statement to Assistant District Attorney Scheer was similar to his statement to Detective McVeigh, and was read at the trial by the stenographer who had transcribed it.

 Judge McCaffrey's rejection of petitioner's claim resolved all conflicts in testimony bearing on the claim against petitioner. Culombe v. Connecticut, 367 U.S. 568, 604, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Therefore, this court must apply the legal standard of voluntariness to the uncontradicted historical facts and determine whether they establish that petitioner's statements were coerced or voluntary. Mancusi v. United States ex rel. Clayton, 454 F.2d 454 (2d Cir. January 17, 1972); United States ex rel. Burns v. LaVallee, 436 F.2d 1352, 1356 (2d Cir. 1970), cert. denied, 402 U.S. 1012, 91 S. Ct. 2190, 29 L. Ed. 2d 436 (1971).

 Judge McCaffrey rejected petitioner's testimony that he was beaten or threatened, that he was told he would not be fed, that he was told the District Attorney could not prosecute him because of his age, and that Assistant District Attorney Scheer pointed petitioner's hand at the alleged murder weapon, petitioner's knife, while newspaper photographers took pictures.

 A review of the record of the trial and of the Huntley hearing indicates that:

At about 2:00 A.M. on August 3, 1957, petitioner and Corley were brought to the 42nd Precinct stationhouse in the Bronx, where they were placed in separate interrogation rooms. Detective McVeigh, the officer in charge of the investigation, questioned petitioner six or eight times between shortly after 2:00 A.M. and 6:00 to 6:30 A.M. Because of his failure to take notes, McVeigh could not recall the length of each questioning or the exact time they occurred. Shortly after the questioning began, McVeigh had Vaughn, who had been with Marshall when the street fight began, identify petitioner through the door of the interrogation room.
McVeigh testified both at the trial and the hearing that he alternated between questioning Corley and petitioner, and that when he was with Corley petitioner was left with other police officers, whom McVeigh assumed spoke with petitioner. McVeigh testified that at first petitioner denied being in any altercation, but at about 5:00 A.M., after Corley had made a statement, petitioner admitted that he struck Marshall.
Petitioner was questioned by Assistant District Attorney Scheer from about 9:15 A.M. to 10:00 A.M., with the last twenty minutes of the interrogation being transcribed by a stenographer. During this interrogation, Vaughn was brought into the interrogation room for a face-to-face confrontation with petitioner. Following this interrogation, newspaper photographers were permitted to take petitioner's picture. Petitioner was not booked until 12:25 P.M. on August 3, 1957 and not arraigned until the following day, more than 30 hours after he was taken into custody.
Petitioner was not told he had a right to remain silent or that he had a right to have an attorney present. Petitioner testified that he had asked to see his mother; however, the detectives testified that they did not recall such a request. In any event, the police did not summon a member of petitioner's family or an adult friend prior to his arraignment.

 As the court noted in Davis v. North Carolina, 384 U.S. 737, 739, 86 S. Ct. 1761, 1763, ...

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