United States v. WARDEN OF AUBURN STATE PRISON

• Decision Date: 04 November 1965
• Docket Number: No. 65-CV-406.,65-CV-406.
• Citation: 255 F. Supp. 516
• Parties: The UNITED STATES of America ex rel., James ROGERS, Petitioner, v. WARDEN OF AUBURN STATE PRISON, Auburn, NEW YORK, Respondent.
• Court: U.S. District Court — Northern District of New York

255 F. Supp. 516

The UNITED STATES of America ex rel., James ROGERS, Petitioner, v. WARDEN OF AUBURN STATE PRISON, Auburn, NEW YORK, Respondent.

No. 65-CV-406.

United States District Court N. D. New York.

November 4, 1965.

Frances Kahn, New York City, for petitioner.

Memorandum-Decision and Order

PORT, District Judge.

A ten count indictment was returned by the Grand Jury of Kings County on February 11, 1963 charging the petitioner with six counts of assault second degree, three counts of assault third degree, and the tenth count charged possession of a revolver in violation of Section 1897 of the Penal Law, McKinney's Consol. Laws, c. 40 of the State of New York as a felony. After the denial of a motion to controvert a search warrant and to suppress the evidence obtained as a result of the search was denied without a hearing, the petitioner entered a plea of guilty to count ten of the indictment. The defendant was sentenced upon his plea of guilty to a term of not less than two and one half nor more than five years. He is presently in Auburn State Prison in execution of the judgment of conviction. The defendant appealed from the judgment of conviction bringing up for review the order denying his motion to controvert the search warrant and to suppress evidence. The judgment and order were affirmed by the Appellate Division, Second Department, People v. Rogers, 22 A.D.2d 902, 255 N.Y.S.2d 332, and by the Court of Appeals, 15 N.Y.2d 422, 260 N.Y.S.2d 433, 208 N.E.2d 422.

Petitioner contends that he is now imprisoned under an illegal and void judgment in violation of the due process and equal protection clauses of the Fourteenth Amendment, and of his rights under the Fourth Amendment. These violations, he asserts, result from the failure of the state courts to direct a hearing on his motion to controvert the search warrant and suppress the evidence.

At all times in the state trial and appellate courts, and in this court, he has been represented by counsel of his choice. Nowhere in the petition is it alleged that the plea of guilty was coerced. The sentencing minutes point in the opposite direction and indicate that the plea to one count of a ten count indictment was a voluntary plea entered upon the advice of counsel. Under these circumstances, no constitutional infirmity exists in the judgment of conviction, United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir., 1965).

Petitioner has filed an affidavit in connection with his petition...