269 F. Supp. 7 | S.D.N.Y. | 1967
Petitioner, imprisoned under a state judgment of conviction for a felony conspiracy,
As to the first, since his appeal was pending when Jackson v. Denno
The petitioner here renews the contentions that were presented and passed upon at the evidentiary hearing. This court has examined the entire testimony and finds there is no basis for
As to petitioner’s second contention, a sufficient answer is Lopez v. United States
Entirely apart from the foregoing, petitioner has never presented the federal constitutional issue to the state courts. The issue presented to the state courts with respect to the tape recording related solely to its inadmissibility based upon alleged lack of identification of the speakers and also the alleged failure to establish nontampering with the tapes. Thus, the single issue presented to the trial and appellate courts went to the competency of the proffered evidence; no constitutional infirmity was ever claimed with respect thereto. In this circumstance there has been a failure to exhaust state remedies,
The petition is dismissed.
. N.Y.Penal Law, McKinney’s Consol. Laws, c. 40, § 580-a.
. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. People v. Alberti, 23 A.D.2d 543, 256 N.Y.S.2d 177 (1st Dep’t 1965).
. 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
. People v. Alberti, 24 A.D.2d 973, 265 N.Y.S.2d 594 (1st Dep’t 1965).
. Cf. Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. State of North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963).
. See Townsend v. Sain, 372 U.S. 293, 312-314, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Lo Piccolo v. LaVallee, 377 F.2d 221 (2d Cir. 1967).
. 373 U.S. 427, 437-440, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).
. 370 F.2d 601 (2d Cir. 1967). See also Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966) ; United States v. Kabot, 295 F.2d 848, 853-854 (2d Cir. 1961), cert. denied, 369 U.S. 803, 82 S.Ct. 641, 7 L.Ed.2d 550 (1962).
. 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
. See United States v. Garcia, 377 F.2d 321 (2 Cir. 1967) ; United States ex rel. Molinas v. Mancusi, 370 F.2d 601, 603 (2d Cir. 1967).
. Terry v. Denno, 254 F.Supp. 909, 910 (S.D.N.Y.1966); United States ex rel. Knight v. Fay, 232 F.Supp. 910, 911-912 (S.D.N.Y.1964); United States ex rel. Rios v. Fay, 232 F.Supp. 368 (S.D. N.Y.1964). See also United States ex rel. McBride v. Fay, 370 F.2d 547, 548 (2d Cir. 1966).
. United States ex rel. McBride v. Fay, 370 F.2d 547, 548-549 (2d Cir. 1966). See also United States ex rel. Tangredi v. Wallack, 343 F.2d 752, 753 (2d Cir. 1965); United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964).