United States ex rel. Diblin v. Follette
Decision Date | 16 December 1968 |
Docket Number | No. 68-C-520.,68-C-520. |
Citation | 294 F. Supp. 841 |
Parties | UNITED STATES of America ex rel. George DIBLIN, Petitioner, v. Harold W. FOLLETTE, Warden of Green Haven State Prison, Respondent. |
Court | U.S. District Court — Eastern District of New York |
John DeWitt Gregory, New York City, for petitioner, Alfred Lawrence Toombs, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen., of the State of New York, New York City, for respondent, Brenda Soloff, Asst. Atty. Gen., of counsel.
In this habeas corpus proceeding petitioner alleges that a 1942 conviction was obtained by a coerced confession. Previously in this Court he alleged that in a variety of ways he was denied his right to appeal that conviction.
Despite years of consideration by more than a score of trial and appellate judges, we are almost as far as we ever were from an answer to the mixed question of fact and law posed by petitioner: were his constitutional rights violated by the state's use of a coerced confession or by denial of the right to appeal? While the law's response in this twenty-five year old case may never be satisfactory because of the lapse of time, petitioner is entitled to an opportunity to prove his claim. An omnibus evidentiary hearing in this Court is ordered to try the merits of all claims — whether or not previously raised — respecting the constitutionality of the 1942 conviction.
Since there is neither a central filing system nor a single state legal office representing New York in post-conviction proceedings, we cannot be certain of the number of applications arising out of petitioner's 1942 conviction. So far as we have been able to determine with the aid of the New York Attorney General, present and former counsel of petitioner, and our own examination of the records of this and other courts, there have already been nine independent applications to trial courts — three in the federal courts — and eight appellate decisions. There has been an evidentiary hearing on one aspect of the right to appeal allegations and none on the merits of the coerced confession claim.
The known applications are listed below:
Petitioner is presently incarcerated in Green Haven State Prison, serving a term of eighteen to twenty years. He was sentenced on June 24, 1959, as a second felony offender by the Court of General Sessions, New York County, after pleading guilty to a charge of incest. See United States ex rel. Diblin v. Follette, 268 F.Supp. 674 (S.D.N.Y. 1967). He seeks to invalidate a 1942 conviction for sodomy after a jury trial in County Court, Queens County, which formed the basis for the sentence he is now serving. See United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.), cert. denied, 377 U.S. 958, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964) ( ).
At the 1942 trial petitioner was represented by counsel. No appeal was taken. The alleged infringement of constitutional rights raised in the present application involves a confession which purportedly was "obtained * * * by intimidation, coercement, inducement, and brutal physical force."
There is no transcript of the 1942 trial. Nevertheless, some idea of the evidence introduced may be obtained from the transcript of the grand jury proceedings and the trial clerk's minutes. From the former it appears almost certain that a full confession, in one or more written versions, was available. The latter indicates that petitioner's alleged young victim, the police officer who confronted petitioner with the victim, and a number of other witnesses testified on the prosecution's direct case; that p...
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Chubbs v. City of New York
...seek a variety of post-conviction remedies in the state courts and then in the federal courts. See, e. g., United States ex rel. Diblin v. Follette, 294 F.Supp. 841 (E.D. N.Y.1968), affirmed, 418 F.2d 408 (2d Cir. 1969). As a first step in meeting the problem of duplication, the New York St......
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United States ex rel. Montgomery v. Brierley, 17105.
...object upon inquiry by the trial judge, Gockley, 378 F.2d at 400. See also opinion by Judge Weinstein in United States ex rel. Diblin v. Follette, 294 F.Supp. 841, 846 (E.D.N.Y.1968). Appellant's right to challenge the voluntariness of his confession in a Jackson v. Denno type hearing is, o......
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United States ex rel. Diblin v. Follette
...claims — whether or not previously raised — respecting the constitutionality of the 1942 conviction." United States ex rel. Diblin v. Follette, 294 F.Supp. 841, 842 (E.D. N.Y. 1968).4 That hearing was subsequently held on April 10, 11 and 14, 1969. After the presentation of evidence by both......