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February 10, 1976

Charles JACKSON, Plaintiff,
Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: ELFVIN


 ELFVIN, District Judge.

 The petitioner is a state prisoner at Attica Correctional Facility and brings this action for a writ of habeas corpus under the provisions of Title 28, United States Code, Section 2254(a).

 On July 7, 1971 the petitioner was convicted of murder of one Diane Thomas by a jury under New York Penal Law § 125.25 in the County Court of Erie County. On September 9, 1971, judgment was entered sentencing him to a term of imprisonment of twenty-five years to life.

 Upon timely appeal, the New York Supreme Court, Appellate Division, Fourth Department, affirmed the conviction. The petitioner subsequently was denied leave to appeal by the Court of Appeals of New York.

 This petition was filed January 21, 1975 and counsel was appointed.

 At the outset, it should be noted that the sole task before me is to determine whether the alleged errors committed by the state courts constitute violations of the petitioner's rights under the United States Constitution. This court has jurisdiction to entertain an application for a writ of habeas corpus only on the ground that the petitioner's confinement violates the Constitution. 28 U.S.C. § 2254(a). Such writ may not issue to correct mere errors of the state law. See, Schaefer v. Leone, 443 F.2d 182 (2d Cir., 1971); Lee v. Henderson, 342 F. Supp. 561, 563 (W.D.N.Y., 1972).

 The burden of proof on a habeas corpus petition falls on the petitioner seeking relief from a state conviction in federal court. He must establish by a preponderance of the evidence that the facts entitle him to a discharge from custody. See, United States ex rel. Horelick v. Criminal Ct., City of N.Y., 366 F. Supp. 1140, 1150 (S.D.N.Y., 1973).

 Viewing the facts in the light most favorable to the Government (as I must), the evidence offered at trial was as follows: About 11:30 p.m. on September 25, 1970, one Walter Lee Davis was walking down High Street in Buffalo when he was joined by the petitioner. The two men engaged in a general conversation while walking together about a block and a half. In front of 518 High Street, they met the deceased, Diane Thomas, and two of her girlfriends, Frances Carr and Gloria Farmel. Though both men were unknown to Carr and Farmel, Thomas did know Davis and she engaged him in a conversation. About this time a third male, Thomas Crawford, came from a nearby yard and joined the group. During the fifteen minutes that this group was together, the petitioner began talking with Farmel. Thomas rebuked the petitioner, telling him to leave Farmel alone. Shortly thereafter the petitioner pulled a gun, fatally shooting Thomas in the head. Farmel, upon hearing the shot, ran into the house. Carr looked up and saw a gun in the petitioner's right hand. She then immediately also ran into the house. Davis observed the petitioner pull out the gun and shoot Thomas. The petitioner then shot at Davis and Crawford and Davis ducked behind a car and Crawford ran across the street. The petitioner then ran down Johnson Street, which runs perpendicular to High.

 A cruising police patrol car stopped at the scene where a group of people had gathered. The policemen received a description of the assailant from Davis and Crawford and put it on their radio. Sometime later other police observed the petitioner walking on nearby Dodge Street and brought him to the scene of the shooting where he was taken out of the car by two policemen. The people who had gathered were asked if "this was the man". Crawford was the first to say he was. Five or six other people, including Davis, all agreed that the petitioner was the man. The petitioner was then put back into the car and driven away by the police.

 Subsequently, a further series of identifications was arranged by the police or otherwise took place. Carr was taken to the precinct station. When she arrived, she found the petitioner with a police officer. The officer asked, "Was he the one?" and Carr answered affirmatively. Carr got another look at the petitioner that night when she was at police headquarters for questioning and saw the petitioner down the hall with two policemen.

 Davis also made a station-house identification. As with Carr, the petitioner was seen by himself by the witness, in a one-on-one show-up; the petitioner then was in handcuffs. The show-up was introduced by the police asking Davis if he could "identify Charles Jackson".

 A Wade hearing was held at the beginning of the trial at which Farmel, Carr and Davis testified. The police officers did not testify. Defense counsel had not arranged to have them present at the time of the hearing, and the trial judge denied a postponement so that defense counsel could make such arrangements belatedly. The judge found that the identifications were not "tainted or suggestive". No finding of independent origin was made, since the identifications were found to be legal. The petitioner then was convicted, after a trial by jury.

 The petitioner alleges four grounds in challenging his conviction. Specifically he complains that (1) the identification procedures were unduly and unnecessarily suggestive, (2) it was error to allow testimony of a previous identification by a person not an eye-witness, (3) it was unconstitutionally prejudicial to allow the jury to ...

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