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January 15, 1974

UNITED STATES of America ex rel. William IRVING, Petitioner,
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Petitioner, now serving a twenty-year sentence at Auburn Correctional Facility, Auburn, New York, pursuant to a judgment of conviction for the crime of manslaughter entered on July 2, 1968 upon his plea of guilty in the Supreme Court of the State of New York, Bronx County, seeks his release upon a federal writ of habeas corpus.

 Petitioner had been indicted for murder in the first degree, charged with the killing of an informant involved in counterfeiting activities. He was permitted to plead guilty to the lesser offense of manslaughter. He was represented at the entry of his plea and at his sentence by counsel of his own choice. He seeks to void his judgment of conviction, charging violation of his rights under the Fifth, Sixth and Fourteenth Amendments. Petitioner heretofore has unsuccessfully challenged the judgment of conviction for such alleged violations by direct appeal, *fn1" applications for collateral relief in the state courts, *fn2" and a prior habeas corpus petition in this court which was dismissed for failure to exhaust available state remedies. *fn3" The state acknowledges that petitioner has now exhausted available state remedies.

 Defendant's claims in essence are that:

 (1) his right to confrontation of witnesses was violated by the state court's pretrial ruling that the testimony of John Bester, a fellow inmate to whom petitioner made inculpatory statements, be perpetuated for trial purposes;

 (2) his rights against self-incrimination and to counsel were violated by the court's ruling upon a Huntley hearing *fn4" that Bester's testimony would be admissible upon petitioner's trial;

 (3) his right to due process was violated by the above rulings since they had a coercive effect in inducing his plea of guilty;

 (4) his right to due process was violated because sentencing promises that allegedly induced his plea were not honored;

 (5) the prosecutor knowingly suppressed evidence favorable to petitioner during the combined perpetuation and Huntley hearing; and

 (6) the court's refusal to allow petitioner to withdraw his plea of guilty on the date of sentencing was improper; alternatively, that his withdrawal of his motion to withdraw the plea was coerced by the court.

 The state, relying upon the trilogy of Brady v. United States, *fn5" McMann v. Richardson, *fn6" and Parker v. North Carolina, *fn7" recently reaffirmed by Tollett v. Henderson, *fn8" urges that petitioner's guilty plea forecloses consideration of all constitutional claims preexisting its entry and that the sole issue to be considered by the court is whether the plea had been made intelligently and voluntarily with the advice of competent counsel. It emphasizes the Court's statement in Tollett :

"We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." *fn9"

 Petitioner, however, contends that despite his guilty plea, federal review of his constitutional claims was preserved, since the ruling entered in the Huntley hearing which denied suppression of his incriminating statements to Bester was appealable *fn10" -- in short, there was no deliberate bypass of the state procedure and no waiver of the federal right to contest their admission in evidence for alleged constitutional infirmity. *fn11" He relies upon United States ex rel. Rogers v. Warden *fn12" and United States ex rel. Molloy v. Follette, *fn13" where our Court of Appeals so held, and also upon a footnote reference in McMann v. Richardson. *fn14" While the state, with some support, *fn15" questions the continued viability of the Second Circuit cases and urges their reconsideration, they appear to be controlling. *fn16" However, since in the instance of an alleged violation of the right of confrontation, unlike the instance of denials of motions to suppress a confession or admission for claimed violations of constitutional rights, the state does not afford appellate review despite a guilty plea, the general rule applies that "a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings." *fn17" In this circumstance, the petitioner's plea of guilty forecloses independent consideration of the claimed infringement of his constitutional right of confrontation. *fn18" However, the alleged facts with respect to that claim may be considered since they are interlaced with and bear upon petitioner's claim that his guilty plea was "involuntary" or "unintelligent" under the Brady trilogy as reaffirmed in Tollett v. Henderson. Accordingly, there are presented separate issues: (1) whether defendant's constitutional rights against ...

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