United States ex rel. Moore v. Follette

• Decision Date: 19 January 1970
• Docket Number: No. 119,Docket 31588.,119
• Citation: 425 F.2d 925
• Parties: UNITED STATES of America ex rel. Nathan MOORE, Relator-Appellant, v. Harold W. FOLLETTE, Warden, Greenhaven State Prison, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

425 F.2d 925 (1970)

UNITED STATES of America ex rel. Nathan MOORE, Relator-Appellant, v. Harold W. FOLLETTE, Warden, Greenhaven State Prison, Stormville, New York, Respondent-Appellee.

No. 119, Docket 31588.

United States Court of Appeals Second Circuit.

Argued October 7, 1968.

Decided January 19, 1970.

Certiorari Denied June 15, 1970.

Michael E. Geltner, New York City, for relator-appellant.

Lillian Z. Cohen, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.

Frank S. Hogan, Dist. Atty., New York County (Michael R. Juviler and Michael R. Stack, Asst. Dist. Attys., of counsel), submitted brief as amicus curiae.

Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.

Certiorari Denied June 15, 1970. See 90 S.Ct. 2180.

FRIENDLY, Circuit Judge:

Nathan Moore was convicted of the felony murder of Mayme Wright in 1957 after a jury trial in the New York Court of General Sessions; in accordance with the jury's recommendation he was given a life sentence. On appeal he contended that a transcript of a confession, received on defense counsel's explicit statement of no objection after certain passages had been deleted, was involuntary because taken while he was experiencing withdrawal symptoms. A detective had testified to an earlier oral confession by Moore, not claimed to have been involuntary, to almost precisely the same effect. The Appellate Division affirmed without opinion, 8 A.D.2d 599, 185 N.Y.S.2d 222 (1st Dept. 1959), leave to appeal to the Court of Appeals was denied, and the Supreme Court refused certiorari, Moore v. New York, 365 U.S. 854, 81 S.Ct. 821, 5 L.Ed.2d 818 (1961).

In 1965 Judge Brennan in the District Court for the Northern District of New York denied an application for habeas corpus without prejudice to its renewal in the event of a refusal by the state courts to take appropriate action under the principle then recently enunciated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Moore applied to the New York courts for a hearing to determine the voluntariness of his confession as authorized by People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). A state judge initially directed a hearing but later recalled his decision on the ground that there had been no objection to receipt of the confession and that the question of voluntariness had not been submitted to the jury by the court in its charge. See People v. Huntley, supra, 15 N.Y.2d at 77, 255 N.Y.S.2d at 843, 204 N.E.2d at 183. The Appellate Division affirmed the order denying a hearing without opinion, 25 A.D.2d 955, 270 N.Y.S.2d 378 (1st Dept. 1966), and leave to appeal to the Court of Appeals was denied.

Moore reapplied for federal habeas corpus, this time in the Southern District of New York. He alleged, as he had previously done in the state courts, that he was a narcotics addict and that his transcribed confession was given while he was experiencing withdrawal symptoms. Judge Cooper denied the application without taking testimony. He held that "there was a deliberate tactical decision by defendant through counsel not to object to the confession," as evidenced by counsel's having obtained the prosecutor's consent to deletions and the express statement of no objection; that "defendant has not alleged he did not participate in counsel's decision," and that there was thus "a deliberate by-passing of state remedies within the meaning of Fay v. Noia," 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Moore then addressed a letter to the district court. This said in part:

"Though it be futile, I can sincerely state that not one of my counsel at trial, advised me as to my rights to a preliminary hearing as to involuntary confession nor any of the intricacies governing the admissibility of confessions, also, they were made aware of witnesses that could testify to the circumstances under which my confession was taken, but for some reason unknown to me they were never called and even now I have affidavits from same witnesses."

Treating the letter as a motion for reargument and a petition for a certificate of probable cause, the judge granted both motions but again denied the writ, stating "Even assuming the facts now alleged by petitioner are true, we adhere to our initial disposition."

The appeal from Judge Cooper's order was argued to us shortly after United States ex rel. Vanderhorst v. LaVallee, 2 Cir., 417 F.2d 411, had been argued to a panel on which Judge Anderson also sat. We deferred decision pending the determination of that appeal, which was ultimately heard by the court in banc and decided on October 10, 1969, Id. at 411. Opinions then prepared by this panel and circulated to the full court elicited a considerable difference of opinion with respect to whether Moore was entitled to any evidentiary hearing concerning his second confession and, if so, whether this should be on voluntariness, on deliberate by-pass, or on both. Further consideration has led the panel to conclude that it is unnecessary to decide these difficult questions since any error in admitting the second confession would have been harmless.

We take the facts developed at the state trial as stated in the petition for habeas corpus itself:

Moore and Elizabeth McCormick, posing as Mr. and Mrs. McCormick, had rented a basement apartment in a brownstone house owned by the decedent, Mayme Wright, who lived upstairs. Charles Bland, who lived next door to the landlady, testified that about 11...