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December 3, 1979

PETER MILLER, Petitioner,
SUPERINTENDENT, Otisville Correctional Facility, Respondent.

The opinion of the court was delivered by: SWEET

Petitioner Peter Miller ("Miller"), a prisoner serving a four year to life sentence at the Otisville Correctional Facility, Otisville, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, his petition is denied.

On March 15, 1977, Miller pled guilty in New York State Supreme Court to charges of conspiracy and sale of a controlled substance. Prior to sentencing, Miller moved for the dismissal of the indictment on the ground that he was selectively and vindictively prosecuted in state rather than federal court because he refused to cooperate with federal officials. After a lengthy hearing the Honorable Michael J. Dontzin found that there was no clear showing that the decision to try the case in state court was solely due to prosecutorial vindictiveness. People v. Carpenito, et al., Ind. No. 4480/76 (N.Y.S. Ct. Mar. 27, 1978). This issue was raised on appeal, but the Appellate Division affirmed the conviction without opinion on March 6, 1979, and leave to appeal to the New York Court of Appeals was denied on April 20, 1979.

 The following facts found by Justice Dontzin are fairly supported by the record and are therefore adopted by this court as follows. *fn1" In March 1976, Special Agents of the Federal Drug Enforcement Administration ("DEA"), commenced an investigation which led them to Miller. Miller was arrested by the Special Agents shortly before midnight on November 11, 1976, after he had transferred cocaine to a Special Agent as part of a planned sale. Four hours later, Enrico Carpenito was arrested by the agents for the same drug-related transactions.

 Each man was separately interviewed that night by Fred Gormandy, the supervising agent who, along with other Special Agents attempted to persuade the defendants to "cooperate" by admitting their participation in the drug sales, and by helping them "make cases" against other drug dealers. Justice Dontzin found that during these interviews, the differences between the sentencing provisions under the state and federal drug laws were explained to the petitioner. According to Justice Dontzin, "viewed at its worst, such references were specifically made to threaten defendants with punishment of state prosecution if they failed to cooperate; and viewed most favorably, were ill-disguised inferences that the defendants would benefit from federal prosecution if they did cooperate."

 Sometime prior to the arrest, the investigation of Miller had been referred to the office of the Special Narcotics Prosecutor of New York City. Justice Dontzin found that there was some commitment on the part of the DEA agents to have the case prosecuted in state court. State indictments were voted against both defendants on November 8, 1976, but were not filed due to the inexperience of the assistant district attorney.

 Since there was no state indictment filed on November 12 and no arrest warrants available at that time, neither Carpenito nor Miller could be arraigned in state court. As an accommodation to the DEA agents and the Special Prosecutor, *fn2" arrangements were made to arraign the defendants in federal court upon a complaint charging them with violations of 21 U.S.C. § 841(a)(1).

 Prior to their arraignment on November 12, the defendants were interviewed separately by Assistant United States Attorney Michael Carey in the presence of Special Agent Michael O'Connor. Efforts were made to persuade the defendants to cooperate with the federal prosecutor and the DEA. Justice Dontzin found it apparent that the matters of mandatory life sentences and tougher state prisons were brought to the defendants' attention with the same purpose and thrust as during the earlier interviews at DEA headquarters.

 The defendants were then arraigned before a federal magistrate, and bail was set. Carey did not inform the magistrate that the federal prosecutor had a commitment to transfer the case to the Special Narcotics Prosecutor, nor did Carey inform counsel for defendants of this fact.

 During the period between the federal arraignment and his arraignment in state court, Miller was contacted by DEA agents personally and on the telephone. On these occasions, the agents tried to persuade Miller to "cooperate" and again mentioned the differences in consequences between federal and state prosecution, with the inference that Miller might be prosecuted federally if he cooperated.

 On November 17, 1976, the assistant district attorney appeared before the New York Special Narcotics Grand Jury and reopened the case. The grand jury heard additional testimony and again voted indictments against Miller and Carpenito, adding a new indictment concerning the November 11 cocaine transaction. Both defendants were arraigned in state court on November 29, 1977. The federal complaints against the defendants were dismissed on November 30.

 A. Due Process

 The petitioner concedes that he has no constitutional right to be tried under a federal statute rather than a state statute, even when the former imposes a less severe penalty. Hutcherson v. United States, 120 U.S.App.D.C. 274, 277, 345 F.2d 964, 967, Cert. denied, 382 U.S. 894, 86 S. Ct. 188, 15 L. Ed. 2d 151 (1965); De Maria v. Jones, 416 F. Supp. 291, 301 (S.D.N.Y.1976). He argues, however, that Justice Dontzin applied an incorrect standard when he found that petitioner was not entitled to a dismissal on due process grounds because his refusal to cooperate was not the "sole" determinative factor in the decision to prosecute him on state charges. He claims that the appropriate inquiry is whether, under all the circumstances, a "realistic likelihood" of prosecutorial vindictiveness is present.

 Petitioner relies on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), in which the Supreme Court held that due process of law requires that vindictiveness against a defendant for having successfully attacked his conviction must play no part in the sentence he receives after a trial. It reasoned that since fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to attack his conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. Id. at 725, 89 S. Ct. 2072.

 This holding was extended to prosecutorial vindictiveness in Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), in which a defendant who appealed from a misdemeanor verdict and was entitled to a new trial was then charged with a felony arising from the same conduct. The Court noted that the Due Process Clause was offended by possibilities of increased punishment upon retrial after appeal "that pose a realistic likelihood of "vindictiveness.' " Id. at 27, 94 S. Ct. 2098. It found that the opportunities for vindictiveness in the case before it were such that the ...

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