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January 10, 1973

Glenn W. HALL, Petitioner,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Petitioner Glenn W. Hall applies for the third time *fn1" for post-conviction relief under 28 U.S.C. ┬ž 2255. Petitioner was convicted in May 1969 of armed robbery of a bank, following a jury trial before us, sitting by designation in the Northern District of New York. He was sentenced to a prison term of ten years, his conviction was affirmed on appeal, and certiorari was denied. *fn2"

Relying on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), petitioner now claims a denial of due process because, allegedly, the prosecution, despite a request for disclosure of information favorable to the defense, withheld a statement of a witness which would have aided him in obtaining an acquittal by proving his alibi. Since the petition and answer raised issues of fact outside the record, we granted an evidentiary hearing.

 We find that petitioner was not deprived of a fair trial and, therefore, deny the petition.

 The questions presented cannot be understood or answered without reference to the context of facts which resulted in petitioner's conviction. *fn3" There was no dispute upon the trial that on the morning of December 12, 1968, a masked man, armed with a rifle, approached a teller as she left her car in the parking lot and directed her into the bank. There he forced her to open a vault, herded the manager and another teller inside, and robbed the Cicero branch of The Merchants National Bank & Trust Co. of Syracuse of $37,872.44, none of which was ever recovered. The issue on the trial was whether petitioner was the robber.

 Among other evidence, the prosecution relied on two eyewitnesses who saw petitioner's car at the scene of the crime. A young lady and her brother had noticed a man in a maroon car in the parking lot behind the bank about fifteen minutes before the robbery. The lady gave a description of the man's clothing, which generally tallied with the description of the robber's clothing given by the people in the bank. As the man drove from the parking lot, he passed the young lady but he covered his face with his hands so that he could not be seen. Suspicious of the behavior, she observed the license plate number and in a few minutes wrote it down. Later, police found footprints in the snow leading from the place where the maroon car had been parked to a place in the parking lot where the masked man had first encountered the teller. The license plate number was traced and found to have been issued to a car owned by petitioner's employer, The Employers Insurance Co. of Wausau, located in Buffalo, N. Y., and assigned to petitioner, who lived in North Tonawanda, a Buffalo suburb.

 About 3:30 P.M. on the day of the crime, special agents of the F.B.I. went to petitioner's apartment house in North Tonawanda. They knocked on his door, but he was not home. The agents went upstairs to an elderly neighbor, Mrs. Frawley, who said that she had not seen petitioner that day but had seen his car in front of the house that morning. She was not sure of the time she had seen the car but believed it was about 8:00 or 8:30 A.M., because she usually went out on her front porch to feed the birds at that time. If this were true, petitioner's car could not have been at the scene of the crime at 8:00 A.M. in Cicero, about 150 miles away from North Tonawanda via the New York State Thruway.

 After interviewing other witnesses at the North Tonawanda office of the New York Telephone Company, where petitioner's girl friend worked, and learning that, contrary to his usual habit, petitioner had not accompanied her in his car when she arrived at work in her car that morning, the agents returned to petitioner's apartment house at about 4:20 P.M. and, this time, found him at home.

 When initially questioned by special agents, petitioner claimed that he had been home all night and that at about midnight he had parked his car in the single-lane driveway of the apartment house behind the car of his neighbor, Schmidt. Since overnight parking on the street was prohibited, petitioner said that both he and Schmidt had to park in the driveway and had exchanged a set of keys so that neither would block the other as either left for work in the morning. Petitioner claimed that when he got up at about 9:00 A.M. on December 12th, his car was parked in front of the apartment house, where, inferentially, Schmidt had moved it.

 Later the same day, the agents interviewed Schmidt, who was positive that petitioner's car was not parked in the driveway, nor in the street, nor anywhere else that he could see when he left for work at 6:00 A.M. Mrs. Schmidt also said that she did not see petitioner's car that morning. Reinterviewed the same afternoon, Mrs. Frawley was not sure which time during the day she had seen petitioner's car because she had been outside a number of times.

 Confronted with Schmidt's statement, petitioner changed his story and claimed that he had left his apartment before 6:00 A.M. to meet a loan shark in Buffalo to arrange a loan. Petitioner has never changed that story.

 The following day, the agents interviewed Mrs. Frawley for the third time, and now she was not sure which day she had seen the car. Mrs. Frawley was not called at the trial, and since then she died, at the age of seventy-two, on March 16, 1970.

 Against this factual background, it appears that on April 1, 1969 petitioner moved under Rule 16, Fed.R.Crim.P., for an order directing the government to produce all evidence favorable to him before trial. Judge Port denied the motion without prejudice to renewal upon the trial. The motion was never renewed, nor was there any other request for favorable information. Arguably, this might preclude us from granting relief to petitioner now. *fn4" We do not consider the procedural point, however, because we find against petitioner on the merits.

 Petitioner contends that the prosecution's failure to disclose Mrs. Frawley's first statement is sufficient prosecutorial misconduct to merit a new trial. Admittedly, the prosecution knew of the statement and decided not to disclose it. The only question is ...

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