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November 5, 1975

UNITED STATES of America ex rel. Rawlin GALLOWAY, Petitioner,
Hon. Walter J. FOGG, Acting-Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 Petitioner, pro se seeks by writ of habeas corpus his release from state custody or, in the alternative, a new trial on the charge of first degree murder on which he was convicted by a jury in state court nearly ten years ago, on December 20, 1965. Petitioner requests an evidentiary hearing on the questions raised in his petition.

 The grounds on which relief is sought are petitioner's contentions that his Fifth and Fourteenth Amendment rights were violated in his prosecution. He contends that his Fifth Amendment rights were violated by the introduction into evidence at trial of his confession because when it was extracted he requested and was denied counsel, he was never advised of his rights to remain silent and to have counsel, he was deceived by the police interrogator and he was a borderline mental defective. He contends that his Fourteenth Amendment right to due process was violated because the state court judge, who held a pre-trial hearing on the voluntariness of his confession, had misconceived the purpose and scope of that hearing.

 The facts follow.

 Petitioner, Rawlin Galloway and another, Harold Bailey, were indicted for murder in New York County in connection with the homicide of Andrew Jackson which had occurred on November 27, 1964. Both defendants pleaded not guilty and asserted the defense of insanity. They were tried before Justice Gerald L. Culkin and a jury in New York Supreme Court. On December 20, 1965 petitioner was found guilty of murder and his co-defendant was acquitted on the grounds of insanity. Petitioner was sentenced to life imprisonment which he presently is serving in the Green Haven Correctional Facility at Stormville, New York. The conviction was affirmed on the facts and the law, without opinion, by an unanimous Appellate Division of the Court. People v. Galloway, 28 A.D.2d 823, 282 N.Y.S.2d 428 (1st Dept. 1967). The New York Court of Appeals affirmed the Appellate Division order, 24 N.Y.2d 935, 301 N.Y.S.2d 994, 249 N.E.2d 771 (1969) *fn1" and recited in its remittitur (amended) that

Upon the appeal herein, there were presented and necessarily passed upon questions under the Constitution of the United States, viz: Whether the rights of defendant under the Fifth and Sixth Amendments were denied. 25 N.Y.2d 917, 304 N.Y.S.2d 850, 252 N.E.2d 283 (1969).
Motion for reargument before the New York Court of Appeals was denied, 25 N.Y.2d 959, 305 N.Y.S.2d 1027, 252 N.E.2d 864 (1969), and the United States Supreme Court denied certiorari, Galloway v. New York, 397 U.S. 1000, 90 S. Ct. 1146, 25 L. Ed. 2d 410 (1970). The petition now before the Court was filed nearly five years after the judgment became final.

 The pretrial proceedings

 A pre-trial, "Huntley" hearing was held to determine whether the confession allegedly made by each defendant was voluntary, knowing and intelligent; both defendants were represented by counsel. See People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). Both defendants testified at this hearing and each denied making any confession when he was interrogated in connection with his alleged confession. At the "Huntley" hearing petitioner asserted that he had requested counsel before he was questioned by police and that they refused his request. The circumstances in the record do not evince such a request or refusal. Plainly the Court did not credit such a request. At the trial the police interrogator, Detective Harold Blabe, was asked if counsel had been requested and he flatly denied that either defendant had requested counsel. In his testimony at the "Huntley" hearing, petitioner admitted that he was not mistreated or threatened by police.

 Detective Blabe testified at the "Huntley" hearing that he had interrogated both defendants before they were arrested and that he told Galloway that Galloway's "friends," Bailey and two men who were apparently part of the plan to attack and rob Jackson but who did not participate in the actual attack, had told him the "entire story." He also testified that he told Galloway he had an outside witness.

 Justice Culkin terminated the "Huntley" hearing, saying

. . . inasmuch as the defendant's position is that he did not . . . make any inculpating statement or admissions of any kind -- I certainly can't rule that they are voluntary (sic).

 However, at the request of petitioner's attorney he deferred decision on the voluntariness issue, pending the receipt from him of ...

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