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January 8, 1981

John NELSON, Jr., Petitioner,
Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: WEINSTEIN


Petitioner, convicted some ten years ago in the state court of murdering a United States Customs official, seeks a writ of habeas corpus. His claims are in essence that he was denied the assistance of counsel during critical periods following his arrest when his claim of an alibi could have been investigated and established; that the court made serious errors at trial, the most important of which were in allowing his coerced confession to be used, in restricting cross-examination of a witness to whom petitioner had sold a service revolver taken from the victim and in denying a Wade hearing on suggestions made to an identifying witness; and that the prosecution failed to reveal exculpatory evidence.

 Appointed counsel for petitioner have done a superb job of researching the law, obtaining all available evidence, conducting a full evidentiary hearing in this court and briefing and arguing the case. They have not, however, been able to overcome two impediments of fact and one of law. First, petitioner lied at his hearing in this court with respect to every material aspect of his testimony; he was not a credible witness. Second, a close study of the record in the state court shows beyond any reasonable doubt that defendant was guilty as charged; was well represented at a critical suppression hearing and at the trial; that, although the state trial judge was possibly overly intrusive, by the time petitioner's counsel and counsel for co-defendants had thoroughly examined and cross-examined the witnesses, the issues had been fully explored; and that no substantial exculpatory evidence was unknown to petitioner at the time of his trial.

 The legal problem counsel have not been able to meet successfully is that although petitioner was denied effective counsel prior to trial, the low "farce and mockery" standard of this circuit was not violated. The various appointed and retained counsel did not, during the months prior to trial, give petitioner's case the kind of attention that a murder case warranted. This was not the finest hour either of Legal Aid, appointed private counsel, the state's system of administration of justice, or privately retained counsel up to the point where trial counsel took over.

 If there were any substantial chance that the current alibi story of petitioner had any element of truth, or that it might, if told at trial, have affected the verdict, the writ should be granted, for counsel clearly made no attempt to verify defendant's claims while the memory of witnesses was fresh and critical dates could be verified. But it is highly probable that the detailed alibi story told at the hearing in this court was a concoction cooked up long after the conviction. It was never reported in the form now claimed to state counsel, to petitioner's mother, to the police or to the assistant district attorney who took the confession a week after the killing. It had no basis in fact and prompt investigation would, with a high degree of probability, have demonstrated it to be a fabric of lies. Thus it is clear beyond a reasonable doubt that more effective counsel prior to trial would not have changed the result. Petitioner was doomed when he shot down his victim and he sealed his fate with his full voluntary confession a week later. No legal skills could have saved him thereafter.

 The Killing

 Petitioner with two companions spent the day of the tragedy getting high on cocaine and heroin. After wandering around their local bars and other hangouts they decided to "make some money" that night. The tools and skills these three nineteen-year old young men had at hand for this enterprise were not extensive, but they were adequate. Petitioner, a high school dropout, owned a semi-automatic thirty-two calibre pistol which had been test fired and still contained two live shells; one of his companions had borrowed a stolen green sports car from a friend and could drive; the third of the group, petitioner's cousin, Brown, had had experience in conducting muggings he specialized in going through the victims' pockets.

 The three drove to a suitable neighborhood where petitioner and his assistant left their chauffeur to pass the time listening to the radio. They approached a chance victim in the street with the petitioner's gun held at the ready; the assistant, Brown, seized a wallet and a government issued gun; a fatal shot was fired by petitioner; the two ran to the car and made their getaway. In the wallet they found twenty-five dollars and an advice of rights card; the document alerted them to the fact that their victim was a law officer. Petitioner's explanation of the shooting to his panicked associates was that the victim had made a threatening gesture.

 Two young ladies walking nearby heard the shot and saw two blacks running from the scene as the deceased was falling to the ground. A young man sitting on his porch saw them run to a car closely resembling the one borrowed and driven by another young black who drove away at high speed. Apart from race, none of these three witnesses could make any identification.

 The person to whom petitioner sold the deceased's gun for seventy-five dollars and some heroin made a courtroom identification. From time to time, he had seen petitioner around one of the local bars. He also identified the gun whose serial numbers tied it to the deceased.

 Ballistic analysis indicated the shooting was by a thirty-two calibre semi-automatic weapon. It was of the type petitioner owned. This gun was not produced at the trial and no further ballistic evidence was introduced.

 The Confessions

 Early one morning about a week after the crime an Assistant District Attorney and stenographer took the confessions of petitioner's two associates. Petitioner was then arrested in his home and brought to the station house about five a.m. He began to talk, broke off his statement, conferred with his mother and then gave a full confession.

 The stenographic record of these three statements is unquestionably accurate. They are interlocking in detail and have a ring of sincerity and truth in their homey particulars. The heart of the petitioner's statement reads as follows:

 A I don't know the exact time we left. We drove over to the neighborhood. It might have been about fifteen blocks from here. I can't remember the street. It was me and Freddie and Cavrel. I seen a guy walking down the street by his self and I didn't see anybody else. I never seen the man before in my life. We got out of his sight and walked around on the opposite side of the street. We crossed the street on an angle to meet him. Just then, we got to him. I told him to freeze, and I grabbed the only hand he had free. He had his left hand free and was carrying something in his right hand. My cousin went through his pockets and I was looking at the man the whole time. My cousin said that he had found a gun, and he took the gun and put it in his pants or something. He said let's go. He walked. He took about two or three steps and the man swung at me and I fired one shot and I ran. I ran to the corner and around the corner, past the car, and I waited around the corner for the car to come around. The only thing I said, I asked Freddie what the fuck was wrong with him driving so slow, and all three of us panicked and shit I had no previous intention. I thought after the shot. I thought about it. We got back in our neighborhood. I thought he was only wounded because I had the gun to his shoulder.

 Q How far away were you from him when you shot the gun?

 A Standing right next to him. I didn't even see when he fell. That's how fast I ran.

 Q When you say your cousin went through his pockets, who is your cousin?

 A Cavrel Brown.

 Q You found the gun?

 A Uh huh.

 Q What kind of a gun?

 A I found out later it was a 357 magnum.

 Q What did it look like?

 A Nickel plated, brown wooden ...

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