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VESS v. LA VALLEE

October 13, 1976

LANGLEY VESS, Petitioner,
v.
J. EDWIN LA VALLEE, Superintendent, Clinton Correctional Facility, Respondent



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D.J.

 By a petition for a writ of habeas corpus, Langley Vess challenges his conviction for rape, sodomy, sexual abuse, and incest imposed upon him after a jury trial in the County Court of Nassau County in violation of 28 U.S.C. § 2241.

 On December 15, 1972, petitioner was sentenced to several concurrent indeterminate sentences of imprisonment with maximum periods of four to fifteen years. On February 11, 1974, petitioner's conviction was unanimously affirmed, without opinion, by the Appellate Division, Second Department. By an Order dated March 7, 1974, leave to appeal to the New York Court of Appeals was denied.

 Petitioner subsequently made several motions in the Nassau County Court to vacate his conviction and to reargue on the grounds that at one point during his trial his counsel was not present in the court, and that there were numerous errors in the trial transcript. Petitioner also sought a writ of error coram nobis based on similar grounds. These applications were all denied. Leave to appeal to the New York Court of Appeals was also denied.

 Petitioner contends that this Court should hold an evidentiary hearing to resolve the factual issues in dispute. He alleges that the trial transcript is incorrect in twenty-eight instances, that his trial counsel, Mr. Irving Singer, was absent from the courtroom during the direct examination of a witness when "patently objectionable questions" were asked, and that his constitutional rights were violated when he was denied the right to counsel on appeal.

 I

 Petitioner has exhausted his state remedies. 28 U.S.C. § 2254(b). As respondent admits in his supplemental affidavit, the errors alleged in the instant petition were argued in petitioner's numerous motions and applications for writs of error coram nobis.

 II

 In Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963) the Supreme Court held that Federal Courts must hold evidentiary hearings in reviewing habeas corpus petitions if the petitioner was not afforded a full and fair hearing in the State courts.

 Petitioner herein has had a full opportunity to present his claims to the New York State Courts. Petitioner admits that he made at least six similar applications to the State courts. *fn1" Petitioner further admits that the same issues raised in the instant petition were "raised, directly and by implication in all of the motions . . .". *fn2" Accordingly, this Court need not hold an evidentiary hearing. U.S. ex rel. Homchak v. The People of the State of New York, 323 F.2d 449 (2d Cir. 1963), cert. denied, 376 U.S. 919, 11 L. Ed. 2d 615, 84 S. Ct. 677 (1964); U.S. ex rel. Marinaccio v. Fay, 336 F.2d 272 (2d Cir. 1964); U.S. ex rel. Combs v. Denno, 357 F.2d 809 (2d Cir.), cert. denied, 385 U.S. 872, 17 L. Ed. 2d 99, 87 S. Ct. 144 (1966). As the Supreme Court cautioned in Townsend (at p. 319):

 
"We are aware that the too promiscuous grant of evidentiary hearings on habeas could both swamp the dockets of the District Courts and cause acute and unnecessary friction with state organs of criminal justice, while the too limited use of such hearings would allow many grave constitutional errors to go forever uncorrected. The accommodation of these competing factors must be made on the front line, by the district judges who are conscious of their paramount responsibility in this area."

 Furthermore, a hearing is not required if the allegations are "patently frivolous". Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 100 L. Ed. 126, 76 S. Ct. 223 (1956). Reference to a sampling of the twenty-eight alleged errors in the trial transcript reveals that the majority fit within the patently frivolous exception to the hearing requirement. For example, petitioner claims that: *fn3"

 
"5. The record of the voir dire of the jury, on empanneling (sic) is not correct; although there definitely was a recess for lunch on the first ...

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