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MITCHELL v. SMITH

October 3, 1979

JAMES MITCHELL, Petitioner,
v.
HAROLD SMITH, Warden, and ROBERT ABRAMS, Attorney General of the State of New York, Respondents



The opinion of the court was delivered by: PLATT

Petitioner, James Mitchell, Pro se, has filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Following a jury trial, petitioner was convicted of murder in the second degree and possession of a weapon in the second degree on March 31, 1977, in New York Supreme Court, Kings County. Subsequently, petitioner was sentenced to imprisonment for a term of twenty-five (25) years to life.

Petitioner appealed, and on May 21, 1979, the Appellate Division, Second Department, unanimously affirmed the conviction without opinion. Petitioner then applied to the Court of Appeals for leave to appeal, but his application was denied (by Wachtler, J.) on August 13, 1979. Concurrently petitioner applied to the Appellate Division, Third Department, for a writ of habeas corpus pursuant to C.P.L.R. 7002, subd. (b) para. 2. On January 25, 1979, the application was denied as being without merit, and on July 10, 1979, the Court of Appeals dismissed petitioner's motion for an extension of time within which to file a notice of appeal on the grounds that the Court did not have power to grant the relief requested in that civil proceeding.

 Petitioner states five grounds in support of his present petition for a writ of habeas corpus. First, he asserts that the constitutional and statutory prohibition against double jeopardy should have prevented his re-trial and conviction on March 31, 1977, after an earlier trial on the same charge had ended in a mistrial on January 11, 1977. Specifically, the petitioner claims that the prosecutor asked the following series of cross-examination questions without a good faith basis therefor of a defense witness who had been called to give identification testimony:

 
Q. And the photographs were of the, basically, the upper part of the body, say from the chest up; do you remember that?
 
A. Yes.
 
Q. And do you remember Detective Strull asking you whether you can identify anybody in these photos?
 
A. Did I remember?
 
Q. Yes. Do you remember him asking you that question?
 
A. Yes.
 
Q. Now, Alice, isn't it a fact that you pointed to the picture of this defendant on that afternoon and said this is the individual who did the shooting?
 
A. No. I had never pointed out that that was him.
 
Q. Do you remember having a District Attorney come to the precinct and take a statement from you with a little with a stenographer and a little machine like that?
 
A. Yes.
 
Q. And the District Attorney asking you questions ...

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