The opinion of the court was delivered by: ZAVATT
This is a petition by a prisoner in state custody for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The petitioner was tried to the court and a jury in Supreme Court, Kings County, New York from June 10 through June 19, 1968, and was found guilty of Manslaughter in the First Degree. On September 19, 1968, Judge Starkey, the trial judge, sentenced the petitioner to a term of imprisonment of 10 to 20 years.
The judgment of conviction was affirmed without opinion by the Appellate Division, Second Department, 35 A.D. 2d 1081, 318 N.Y.S. 2d 266 (1970). The Court of Appeals denied leave to appeal on February 4, 1971.
Petitioner moved for a new trial on the grounds of newly discovered evidence. This motion was denied on April 13, 1972. Petitioner then filed a habeas corpus petition in this court. Such petition was withdrawn in order to enable petitioner to exhaust his state remedies with respect to his motion for a new trial. Petitioner moved in the Appellate Division, Second Department for leave to appeal from the denial of his motion for a new trial. On February 14, 1973, the application for leave to appeal was denied. Thus, petitioner exhausted his state remedies with respect to his motion for a new trial. See New York CPL § 450.90(1); People v. Fein, 18 N.Y. 2d 162, 272 N.Y.S. 2d 753, 219 N.E.2d 274 (1966), cert. denied, 385 U.S. 649, 87 S. Ct. 766, 17 L. Ed. 2d 668 (1967).
The court has examined the following from which it has gleaned the facts:
trial transcript (842 pages)
defendant-appellant's brief on appeal to the Appellate Division
respondent's brief on appeal to the Appellate Division
defendant-appellant's reply brief on appeal to the Appellate Division
petitioner's motion for a new trial
affidavit in opposition to motion for a new trial and accompanying memorandum of law
petition to this Court for a writ of habeas corpus, dated February 27, 1973 and accompanying memorandum of law
affidavit in opposition of Assistant Attorney General Hillel Hoffman, sworn to March 26, 1973
petitioner's reply memorandum of law dated April 10, 1973
On May 10, 1967, at approximately 9:00 P.M., an armed robbery was committed in the cleaning store of Louis Connor located at 287 Nostrand Avenue, Brooklyn, New York. During the commission of this robbery, Louis Connor was shot in the head, resulting in his death. There were no eyewitnesses to the crime.
Petitioner and Allen "Peewee" Durham were arrested for the offense on June 3, 1967, and subsequently indicted on October 24, 1967 in Indictment Number 2289/67 for the crime of Murder in the First Degree. Petitioner was also indicted for the crime of unlawful possession of a loaded revolver. Prior to trial Durham pled ...