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July 25, 1984

Howard JACOBSON, Petitioner,
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility; Thomas A. Coughlin, III, Comm'r, Department of Correctional Services; and Robert Abrams, Atty. General, Respondents.

The opinion of the court was delivered by: CANNELLA


CANNELLA, District Judge:

 The petition of Howard Jacobsen for a writ of habeas corpus is denied. 28 U.S.C. § 2254.


 Petitioner is currently confined at Auburn Correctional Facility pursuant to a judgment of the New York Supreme Court, Bronx County (Kapelman, J.), upon a jury verdict convicting him of second degree murder. N.Y.Penal Law § 125.25[1] (McKinney 1975). Petitioner was sentenced to serve an indeterminate term of twenty-five years of life imprisonment.

 Approximately eight months after the jury verdict, petitioner moved to vacate the judgment because of jury misconduct during deliberations.The motion to vacate the judgment was denied. People v. Jacobson, 109 Mis.2d 204, 440 N.Y.S.2d 458 (Bronx Co.Sup.Ct.1981). On appeal of the judgment of conviction and the order denying the motion to vacate the judgment, the Appellate Division, First Department, affirmed the judgment and order. People v. Jacobson, 89 A.D.2d 826, 452 N.Y.S.2d 473 (1st Dep't 1982). The Court of Appeals denied petitioner leave to appeal. People v. Jacobson, 57 N.Y.2d 781, 454 N.Y.S.2d 1057, 440 N.E.2d 1348 (1982).

 Thereafter petitioner sought habeas relief from this Court, asserting that he was denied (1) a fair trial and the right to an impartial jury because of jury misconduct in violation of the fifth, sixth and fourteenth amendments; (2) a fair trial, his right to compulsory process in violation of the sixth amendment and due process in violation of the fourteenth amendment because the prosecution failed to produce George Miller, an alleged material witness; and (3) a fair trial in violation of the sixth and fourteenth amendments because of the court's denial to permit Leonore Berg to testify.

 Briefly, the facts relevant to the jury misconduct are: During deliberations heated colloquy occurred among the jurors: screaming, hysterical crying, fist banging and name calling. *fn1" Abusive language was used. One juror in particular, who basically "broke down", *fn2" threw a chair allegedly at another juror. That juror, an auxillary policeman, stated he was sick and required medical assistance. When the chair was thrown, allegedly one of the jurors requested the court officer to inform the trial judge of the incidents occurring in the jury room but the court officer declined to do so unless a note was sent through the foreperson. Allegedly, the court officer was informed that everything was under control. The trial judge was not informed of the chair-throwing incident at that time.

 Petitioner alleges that these acts were designed to coerce the jurors who favored acquittal to change their votes to guilty. The disturbing incidents were conveyed months after the verdict of the trial judge through affidavits of the jurors. It is further alleged that during deliberations one juror read from notes he had taken during the trial and that at one point, the jury was deadlocked and the foreperson would not so inform the trial court. At a later point in time, the trial judge was informed of a deadlock. Petitioner alleges that this conduct denied him a fair trial.

 Judge Kapelman declined to consider the jurors' affidavits to determine if members of the jury were coerced into changing their votes from innocent to guilty. Three jurors' affidavits were taken. Allegedly, juror Michael Speller stated to the Government that his affidavit was replete with inaccuracies. *fn3" He would, however, not swear to another affidavit for the Government. Speller's affidavit was sworn three weeks after the verdict at the request of Jacobson's paramour with whom he had taken flight following his conviction.

 Jacobson's counsel had obtained the affidavits of jurors Bernice Foust on May 30, 1980 and Rose Kovnit on November 6, 1980. When the Government investigated the circumstances under which these affidavits were given, the two jurors informed them that the affidavits were accurate.

 Failure to Produce George Miller

 As a defense, Jacobson contended at trial that Tupper's narcotic coconspirators murdered Tupper. Jacobson contended that Miller was the only one, other than Tupper's coconspirators, who could testify about Tupper's involvement with drug traffic. Petitioner further asserts that it was incumbent on the Government to produce Miller or inform petitioner of Miller's whereabouts.

 Miller had testified as a confidential informant in a federal narcotics case in the Eastern District of New York in which Tupper was named as an unindicted coconspirator. He testified in the Eastern District case prior to peitioner's trial. Jacobson unsuccessfully tried to subpeona Miller by serving the subpoena on the Assistant United States Attorney ["Assistant"] who represented the Government in the Eastern District case. The Assistant refused service since Miller was no longer working with the Government and had returned to private life. The assistant stated that he would contact Miller to inquire if he would appear voluntarily. He then testified at petitioner's trial that although he had a current address for Miller, he was unable to contact him. Furthermore, neither the District Attorney nor the trial judge knew of Miller's whereabouts. Defense counsel told the trial court that a journalist had informed him ...

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