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July 25, 1974

VINCENT R. MANCUSI, Warden, Attica Prison, Attica, New York, HAROLD W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, and DANIEL McMANN, Warden, Clinton Prison, Dannemora, New York, Respondents

Kevin Thomas Duffy, D.J.

The opinion of the court was delivered by: DUFFY



 In their consolidated petitions for habeas corpus *fn1" petitioners Headley, Huntley and Sams raise four constitutional challenges to their 1960 conviction for armed robbery. They claim: (1) that the admission into evidence of an illegally seized gun violated the exclusionary rule laid down in Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961); (2) that the admission into evidence of Huntley's confession implicating the other petitioners, coupled with his failure to take the stand, deprived Headley and Sams of the right to confrontation as defined in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968); (3) that Huntley was convicted on the basis of an involuntary confession in violation of the rules laid down in Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964); Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964); and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); and (4) that Sams was convicted on the basis of an involuntary admission also in violation of the rules laid down in Jackson v. Denno, supra, Escobedo v. Illinois, supra, and Miranda v. Arizona, supra. These four claims have been fully exhausted in the state courts and are therefore ripe for adjudication. *fn2" 28 U.S.C. § 2254. The first step in deciding these claims, however, is to review the facts on which they are based.


 Petitioners were jointly tried and convicted by a jury in the Court of General Sessions of New York County. The case arose out of the payroll robbery of one Morris Baden on January 20, 1959, as he returned from the bank to his place of employment at the Jelrus Precision Casting Co. with the company payroll of $5,849.82. He testified at the trial that as he entered the building and started up the stairs to the plant office on the second floor, a voice behind him shouted, "Hey, hold it", and he turned around to face two men with guns. At this point another employee of Jelrus Precision, Ernest Bockli, happened to emerge from the second floor office and start down the stairs. The two armed men pushed Baden and Bockli against the wall, took the payroll and disappeared. At trial both Baden and Bockli identified the two men as Headley and Sams.

 The evidence against Huntley consisted mainly of his confession in which he described the planning of the robbery and recounted his own role and those of four others. *fn3" The confession was introduced through the testimony of Philip Dennehy, the chief interrogating officer, who questioned Huntley following his arrest on March 8, 1959. In reciting the confession, Dennehy did not name the other participants but rather referred to them as A, B, C and D.

 Huntley told Dennehy he thought it was about the second week of January 1969, that he, A, B, C and D got together on "the $6,000 payroll stickup." He said that a few days earlier he had met his old friend D at a bar and that he and D had confided to each other that they were "broke". D told him that he worked for the Precision Metal Company where he said "the payroll had never been taken; it should be easy." Huntley told Dennehy he relayed the information to A, and that he, A, B and C met the next night at A's house and discussed plans for the stickup. He said that A was the "boss of the job".

 On the day of the crime he recounted that they met at A's house and drove in C's car to West 131st Street where they waited from 9 a.m. until after noon. At about 12:15 or 12:30 p.m. a white man about 50 years old came out of the building holding an envelope, and Huntley followed him to the bank at 125th Street and Broadway. Huntley then returned to the car and told A that the man had gone into the bank. A then told B, "I'm going to take you with me", and told Huntley to stay downstairs on the sidewalk in front of the entrance to the building from which the man had emerged. When the man returned, A and B followed him into the building while Huntley remained outside.

 In less than a minute A and B reappeared, and all three returned to the car, a yellow Packard owned by C, who drove a few blocks and then let the others out. A and B gave Huntley the money; A also gave him a revolver with white tape on the handle and B gave him a black automatic. They then "split up" and Huntley took a taxi to a prearranged meeting place on West 123rd Street between Lenox and 7th Avenues. Five or ten minutes later A and B arrived and A divided the money which was "in blocks of tens, twenties, one dollar bills and some change". A gave $1,600 each to B and Huntley, gave $450 to C when he arrived an hour later, and gave $400 to Huntley to be delivered to D at his house.

 Huntley also told Dennehy that he had a.25 caliber Italian automatic, nickel plated, with pearl handles, which he had bought on West 107th Street from a man called Phil, who had since died of a heart attack. He said he had spent his share of the proceeds on food, drink, gambling and had paid a dental bill for his girl friend "Tiny" [Eleanor Gordon].

 In addition to recounting Huntley's confession, Dennehy also testified to the admissions made by Sams shortly after his arrest on March 8, 1959. When he first asked Sams his name and address, Sams told Dennehy he already knew them, and remained bent over in his chair without looking at Dennehy. Then Sams suddenly protested, "Those guys said they would leave me out of this" and started hitting the glass topped desk with his fist. When Dennehy told him to stop and asked him what the matter was, he said he could not do any time in prison, to which Dennehy replied, "Then why did you get involved in this stickup?" Sams told Dennehy that he was going to die anyway and that he figured "he could use a couple of months of good luck". In response to Dennehy's inquiry as to what he had done with the gun which he had on the stickup, Sams replied that he never had a gun of his own, that he always borrowed one and that he gave it back. These admissions were supplemented by the testimony of Patrolman Leonard Williams who arrested Sams and drove him to the station house. On the way he said he asked Sams how he had become involved and Sams answered that he had "felt lucky and wanted to take a chance."

 Dennehy also testified that he had found the only gun introduced at trial under an overturned bucket on the fire escape outside the kitchen window of the apartment where Headley, his parents and his girl friend, Dolores Kelly, lived.

 Dolores Kelly identified all three defendants and testified about the planning of the robbery. She said that on January 19, 1959, from her bedroom she overheard Headley saying to Huntley, Sams and a "Bill" Wright that they were going somewhere, that "Lucky" [Sams] was to wait downstairs while Headley and "Charlie" [Huntley] went upstairs, that "Bill" [Wright] was to drive the car, and that three weapons were to be used. She said that the men agreed to, and did, meet at Headley's apartment the next morning, January 20, to go over the plan once more and that when they left, Headley remained behind for a moment, strapping a holster to his belt and placing a pistol in it. She added that Headley returned to the apartment that afternoon and counted out $1,600 in small bills.

 Petitioners' convictions were unanimously affirmed by the Appellate Division without opinion (People v. Headley, Huntley and Sams, 15 App. Div. 2d 735 (1st Dept. 1962)), and leave to appeal to the Court of Appeals was denied. *fn4" Headley and Sams filed a joint petition for certiorari in the United States Supreme Court, claiming that their cases should have been severed because of Huntley's confession; this was denied. Headley v. New York, 370 U.S. 962, 8 L. Ed. 2d 829, 82 S. Ct. 1620 (1962). Huntley, too, petitioned for certiorari claiming that (1) his confession was inadmissible because obtained during illegal detention; (2) his conviction was invalid because based on an illegal arrest and search; and (3) that the witness, Dolores Kelly, was incompetent to testify because of addiction to narcotics. *fn5" This petition was likewise denied. Huntley v. New York, 371 U.S. 837, 9 L. Ed. 2d 73, 83 S. Ct. 63 (1962).

 Two years later, however, Huntley's application for leave to appeal to the Court of Appeals was reconsidered and granted in light of Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), and his case was later remanded for a hearing on the question of the voluntariness of his confession. People v. Huntley, 15 N.Y. 2d 72, 255 N.Y.S. 2d 838, 204 N.E.2d 179 (1965). After an extensive hearing, Justice Geller found the confession voluntary. People v. Huntley, 46 Misc. 2d 209, 259 N.Y.S. 2d 369 (Sup. Ct. 1965), aff'd 27 App. Div. 2d 904, 281 N.Y.S. 2d 970 (1st Dept.), aff'd 21 N.Y. 2d 659, 287 N.Y.S. 2d 90, 234 N.E.2d 252 (1967). A similar hearing was held in 1968 with respect to Sams' admissions and they too were found to be voluntary in an unreported decision which was affirmed. People v. Sams, 40 A.D.2d 955, 338 N.Y.S. 2d 382 (1st Dept. 1972). *fn6" Petitioners' other claims, to which I now turn, were dismissed without a hearing by the state courts. *fn7"

 Mapp Claim

 The Mapp claim is advanced only by petitioners Headley and Sams, Huntley having failed to raise it in the state courts. The claim is that the gun which was recognized by several witnesses and introduced into evidence at trial was seized from the Headley apartment during a general, warrantless search conducted while Headley was already in jail and that Headley's and Sams' Fourth Amendment rights were thereby violated under the holding of Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), which was decided after petitioners were convicted but was made retroactive to all cases, including petitioners', which were then pending on appeal. Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965).

 Respondents dispute the validity of this claim with regard to both Sams and Headley but for different reasons. They urge that Sams' claim was long ago decided adversely by Judge Croake of this court on the ground that Sams lacked standing to raise it (United States ex rel. Sams v. Fay, 64 Civ. 2071 (S.D.N.Y., Sept. 15, 1964)), *fn8" and that I ought therefore to exercise the discretion permitted by 28 U.S.C. § 2244(b) to dismiss it as repetitious.

 There are two obstacles to this course. First, the premise of the statute as amended by Congress in 1966 is that a hearing was held on the merits of the previous ...

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