United States Ex Rel. Calvin Frizer, Relator-Appellant v. Daniel McMann Warden of Auburn Prison, Auburn, New York
437 F.2d 1309
2d Cir.
1970
Check Treatment

*1 Court, filed The order of vacated, February will be District remanded to the

the case will be issue instruction to with an corpus prayed for.

writ of habeas FRIZER,

UNITED ex rel. Calvin STATES Relator-Appellant, McMANN, of Auburn Warden

Daniel Auburn, Prison, Respondent-Appellee. 473, Docket 34039.

No. Circuit.

Second

Argued Jan. 1970.

Decided Jan. 1970.

Submitted in Banc Feb. 1970. April 1,

Decided City, New York

relator-appellant. Proudfit, Atty. John G. Asst. Gen.

(Louis Lefkowitz, Atty. J. Gen. of State City, New York and Sam- Hirshowitz, Gen., Atty. uel A. First Asst. counsel), respondent-appellee. LUMBARD, Judge, Before Chief FRIENDLY, Judge, Circuit and MANS FIELD, Judge.* PER CURIAM: Calvin convicted Y., County, Court of Nassau N. by jury, burglary after in the sec- degree grand larceny attempted ond degree. the second that his claimed had been ob- conviction tained in violation of the Federal Consti- ' * York, sitting by designation. Of the of w Southern District *2 1310 sug impermissibly get truck; of an tution because and that gestive identification, getting Den he see Stovall v. succeeded in had the first 1967, no, 293, digits, 18 L.Ed. 388 U.S. 87 S.Ct. three which tallied those of with (1967), police been de stopped

2d 1199 and that he had truck the within few to a nied his Amendment Sixth minutes. He could not remember what Appellate af except trial. The Division intruder looked like that he Frizer, opinion, People Perryman v. firmed without was a black man. Mrs. did not 599, (1968), face; 31 A.D.2d 295 N.Y.S.2d 612 see the intruder’s did she observe jacket and to to the cap. leave black pa- leather A and peti respect Court and a trolman testified with truck; tion for certiorari brief chase of the it is inferable denied, immediately Frizer v. New 394 that it was detected almost 1007, 1608, leaving driveway. U.S. 89 S.Ct. 22 L.Ed.2d 786 after Mrs. Hubbell’s (1969). then filed no There was case for the defense. corpus in the habeas District Court The claim that Mrs. Hubbell’s Northern having by been shown Frizer the side Judge Foley opin which denied in a brief sug impermissibly seized car was probable ion. issued We a certificate gestive meaning within the of Stovall v. cause. Denno, supra, 293, 1967, 388 U.S. 87 S.Ct. States, Simmons v. crime, United of the 390 U.S. victim a Mrs. Hub- 377, 384-385, 967, 88 S.Ct. 19 L.Ed.2d bell, morning testified that (1968), unpersuasive. 1247 is Mrs. Hub- 30, 1966, heard a at she noise simply again bell saw what she had been door, by “picking” her front followed observing continuously more or less door, at sound her back and observed a beginning burglary. The case jacket working man in black on leather quite analogous is respect in this to Bates entering the lock later the house. States, 36, v. U.S.App.D.C. United 132 Mrs. then returned to her bed- Hubbell (1968) (Burger, J.). 405 F.2d 1104 See room, and she in the connect- while also United States ex rel. Williams v. corridor, ing she the man in her tele- saw LaVallee, (2 1969). 415 F.2d 643 Cir. jumped vision room. out of a She bed- Indeed, police we have held that conduct window, room to a went across the street similar to that here would not be unlaw occupied Perryman, house Mrs. governed ful even in eases United green police. called the She saw a Ford Wade, 218, States v. 388 U.S. 87 S.Ct. panel parked driveway, to truck next her 1926,18 (1967), L.Ed.2d 1149 and Gilbert neighbor, Flatow, standing and a California, v. 388 U.S. 87 S.Ct. lawn next it. intruder came (1967). 18 L.Ed.2d 1178 truck, opened around the back of the Davis, (2 States v. Cir.), 399 F.2d 948 doors, closed the back and entered the denied, cert. 393 U.S. 89 S.Ct. truck; again Mrs. Hubbell noticed (1968). 21 L.Ed.2d 449 length three-quarter he wore a coat of plastic cap. black leather or and a dark other claim is more seri Shortly police ous. He and called for her his codefendant Jackson (who patrol car, pleaded guilty) later “apprehend- told her were arrested men,” neigh- September 30, 1966, on her, ed the and showed in a and indicted on boring street, green panel days November Ford he truck Five later pleaded guilty policemen with two men and several remanded standing In beside it. bail. March Mrs. iden- Hubbell 1967 he sent Frizer, wearing court a “Pro tified still Se Motion In black Dismiss jacket. Prosecution,” dictment leather for Want Flatow testified walking seen the which intruder Chief Clerk between referred to his appointed green Mrs. Hubbell’s house counsel. The and the Ford docket recites panel truck; that a that Mrs. examination was or Hubbell had Perryman’s 28, 1967, shouted from April Mrs. on motion of dered on house (2 Mancusi, 412 F.2d May rel. counsel; motion Solomon 24 a that on having 1969). the defense Cir. With jury grand minutes and inspect given having (al- no presented case and no denied the indictment dismissed possibly could have this indication what though is unclear whether record likely presented, to have de- is more of both on behalf motion was prosecution. Jackson); hurt and that or fendants *3 put Active the case June 21 appreciation to expresses its The court called The case was Reserve Calendar. assigned Esq., coun- adjourned August 21 but was for trial on argument sel, have been whose briefs and ap- 11; counsel Frizer’s singularly helpful. able and adjournment requested parently an Affirmed. objected the day one but for Banc. Petition for in On Septem- postponement. three-week ready and marked 11 the case ber Judge: LUMBARD, Chief part dis- then trial but was sent psychiatric examination the covered judges concurring the in All the active yet spring had not been in the ordered delay crim- view that in the trial of on October commenced held. Trial cases, in inal are held where defendants a denying then court jail awaiting many trial, courts of counsel to dis- month earlier se- of New York raises counties of denial of the indictment because miss questions rious of consti- of violation trial. rights, for tutional rehear- granted. ing in banc is jail long delay of cases in the trial The County requests a source has become amici in Nassau court briefs thirty days York to the New of serious curiae be filed within concern Walston, People Misc. of the Judicial date this order courts. See J., York, (Harnett, Conference of the of New 2d 303 N.Y.S.2d State County) (dis City York Criminal Justice Co- Nassau New ordinating Mayor Council, of missing defendant indictment where year City jail York, of Attor- in for held almost been York, neys yet of New not been scheduled of the Counties half and case had ought Kings, Queens, Westchester, trial). Bronx, But Frizer’s Nas- It to be. for nothing Legal Society happened Erie, sau and Aid case where York, months the American Liberties a half be New Civil ten and Union, Legal De- Defense the National Aid and trial. tween indictment Association, pre-trial not de fender the New State motions counsel’s Bar Association Association months after indictment. cided until six City examination, in the Bar of ad- then the Even parties. apparently inter dition to the The Judicial Con- in defendant’s directed est, through ference of the had not whose State been held — State, attorneys, and the district the record does not reveal. Thus fault counties, requested advise their are in there would have been a considerable court in their briefs between indictment and trial terval even awaiting jail congestion persons in in criminal held more than three months and the reasons calendar the Nassau Court. any other considerations therefor such is not Under circumstances questions relevant deem be setting con sufficient basis for aside a presented. jail absence viction even case in the showing prejudice of a than clearer require court reserves argument. ex been made here. United has further oral