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May 7, 1974

UNITED STATES of America ex rel. Raymond M. GILLIARD, Petitioner,
Hon. J. E. LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent

Conner, District Judge.

The opinion of the court was delivered by: CONNER


CONNER, District Judge:

 Raymond M. Gilliard, currently incarcerated in the Great Meadow Correctional Institute, Comstock, New York, petitions this Court for a writ of habeas corpus. On June 17, 1968 he was sentenced by Justice John M. Murtagh of the Supreme Court of the State of New York, New York County, to prison terms of 40 to 60 years, after a jury trial in which he was convicted of all 27 counts of an indictment charging him with robbery, larceny, rape, assault, sodomy, burglary and possession of dangerous weapons. On March 1, 1971 the Appellate Division of the New York Supreme Court, First Department, affirmed without opinion. People v. Gilliard, 36 A.D. 2d 794, 318 N.Y.S. 2d 681 (1971). On May 20, 1971, leave to appeal to the New York Court of Appeals was denied (Burke, J.).

 Thus, having exhausted his state remedies, petitioner properly invokes the jurisdiction of this Court.


 The two incidents which led to petitioner's prosecution and conviction both occurred within the three-day period August 12-14, 1967. At about 10:00 p.m. on August 12, as Ted Greene, Barbara Keating and Sam Gerber were entering Greene's apartment on East 6th Street in Manhattan, petitioner and three other men forced their way in, announcing "this is a robbery". Once inside, one of the men drew a knife while the others blocked the door by placing the refrigerator in front of it. They then proceeded first to blindfold and gag and then to rob their victims. Shortly thereafter, Miss Keating's blindfold was removed and each of the men raped her. While this was transpiring, Cynthia Brucksch came to the apartment. Miss Keating implored petitioner to leave Miss Brucksch alone because of her heart condition (Tr. 634). But, in spite of her entreaties, petitioner forced Miss Brucksch at knifepoint to disrobe and raped her. (Tr. 679-680). Thereafter, the other men also raped her.

 At about five o'clock in the morning, following their use of drugs, the perpetrators became passive and friendly, and allowed Greene out of the apartment ostensibly to take Miss Keating to the hospital. However, after leaving the apartment, Greene and Keating did not go to the hospital because they were afraid the police would learn what had transpired and seek to enter the apartment. Petitioner had threatened them that this would result in Gerber's death. The men finally left the apartment at about 7:30 on the morning of August 13th. The police were notified late that morning.

 During the afternoon of August 13, Keating and Greene gave Detective Matarazzo a description of the assailants and looked through the police photograph files, simultaneously identifying petitioner from one photograph (Wade Tr. 32-32-D). Miss Brucksch also gave descriptions and viewed photographs that day and likewise identified petitioner (Wade Tr. 164-66).

 On August 21, 1967, Detective Matarazzo called Greene and asked whether he could "come down and look at some people". He went down to the police station and viewed three men, one at a time, through a one-way mirror. One of the men he picked out was petitioner (Wade Tr. 35-36).

 On August 25, 1967 Greene, Keating and Brucksch went down to the Criminal Court, Part 1-A and sat in the back of the courtroom. There they promptly identified the defendants walking in the front of the courtroom.


 On August 14, 1967, the day after the first incident, Gene Mundie and Karen Trimble drove Pauline Turner home from the airport. When they entered her apartment building on East 11th Street in Manhattan at about 10:00 p.m., four men entered with them and forced their way into her apartment. Mrs. Turner became very upset by their behavior, and when she protested, she was assaulted. Mundie was then blindfolded, gagged and bound with telephone wires removed from the apartment. He was assaulted numerous times and kicked while lying on the floor. Mrs. Turner was blindfolded and then repeatedly raped and sodomized. Eventually, her blindfold was removed and she was attacked with a knife.

 Miss Trimble, who was not blindfolded, was beaten until she agreed to remove her clothes, and then raped by all of the men.

 The perpetrators left about 12:00 a.m., and the police were summoned.

 On August 15, Trimble, Mundie and Turner gave descriptions of the perpetrators and looked through the police photograph file. Trimble and Turner mistakenly identified one John Moses, but Mundie did not agree. Later that night they were called again to headquarters to view Moses at a "show-up" through a one-way mirror. They all identified him as one of their assailants.

 On August 20, Miss Trimble was called back to the precinct and was brought before the one-way mirror again. This time she picked out the petitioner and told Detective Matarazzo that ...

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