United States v. Denno

• Decision Date: 09 May 1962
• Citation: 204 F. Supp. 263
• Parties: UNITED STATES ex rel. Francis Henry BLOETH, Relator, v. Honorable Wilfred DENNO, as Warden of Sing Sing State Prison, Ossining, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

204 F. Supp. 263

UNITED STATES ex rel. Francis Henry BLOETH, Relator, v. Honorable Wilfred DENNO, as Warden of Sing Sing State Prison, Ossining, New York, Respondent.

United States District Court S. D. New York.

April 3, 1962.

On Motion for Reargument May 9, 1962.

Anthony F. Marra, New York City, for relator.

Louis J. Lefkowitz, Atty. Gen., New York City, for respondent; Irving L. Rollins, Asst. Atty. Gen., of counsel.

CASHIN, District Judge.

This petition for a writ of habeas corpus has been filed by Francis Henry Bloeth, who is presently confined in a New York State prison awaiting execution under a sentence of death pronounced against him in the County Court of Suffolk County, State of New York, after a jury verdict of guilty of murder in the first degree. Relator was convicted on May 14, 1960 and this conviction was unanimously affirmed by the New York Court of Appeals. People v. Bloeth (1961) 9 N.Y.2d 211, 213 N.Y.S.2d 51, 173 N.E. 2d 782. On March 30, 1961 leave to reargue was denied by the New York Court of Appeals but the remittitur was amended to provide that certain questions under the Fourteenth Amendment to the Constitution of the United States were presented to and passed upon by that Court. The Amendment states:

"Upon the appeal in this Court there were presented and necessarily passed upon questions under the Fourteenth Amendment to the Constitution of the United States, as follows: Whether defendant's confession was voluntary and whether the place of trial should have been changed. This Court held that there was no denial of any constitutional or other right of the defendant." (9 N.Y.2d 823, 215 N.Y.S.2d 769, 175 N.E.2d 347).

On October 9, 1961 the United States Supreme Court denied relator's petition for a writ of certiorari with Mr. Justice Douglas dissenting. Bloeth v. New York, 368 U.S. 868, 82 S.Ct. 98, 7 L.Ed.2d 65 (1961). Relator then applied to this court for a writ of habeas corpus. On October 30, 1961 permission was granted by this court to the relator to proceed in forma pauperis, and on November 20, 1961 Anthony F. Marra, Esq., the attorney of record for The Legal Aid Society of New York, was assigned as counsel to represent the relator. On January 9, 1962 relator, with the consent of this court, withdrew without prejudice his application for a writ of habeas corpus.

A second application for reargument was then made to the New York Court of Appeals raising two questions: first, that relator's confession admitted into evidence at the trial was procured in violation of his right to be represented by competent counsel and, second, that the confession was obtained while relator was being illegally detained and was thus inadmissible in a state trial under the Fourth Amendment to the Constitution of the United States. On February 22, 1962 the New York Court of Appeals denied without opinion the application for reargument and set the week of March 26, 1962 for the execution of the death sentence. On March 7, 1962 the Honorable Stanley H. Fuld, an Associate Judge of the New York Court of Appeals, denied relator's application for a stay of execution pending application to the United States Supreme Court for a writ of certiorari to review the denial of the motion for reargument.

On March 19, 1962 the Honorable John M. Harlan, an Associate Justice of the Supreme Court of the United States and Circuit Justice for the Second Circuit, denied an application for a stay of execution pending the filing and disposition of a petition to that court for a writ of certiorari to review the order and judgment of the New York Court of Appeals denying reargument. On March 26, 1962 I signed a stay of execution pending the disposition of the present petition. Bloeth v. State, 82 S.Ct. 661.

In the petition now before me the relator urges only the claims that the confession admitted in evidence against petitioner was procured in violation of his right to be represented by competent counsel devoted solely to the interests of his client and that the confession admitted in evidence against petitioner was involuntary. There appears to be no relevant facts in dispute and no request has been made that testimony be taken. I have before me the entire record of the case including a complete stenographic transcript of the trial.

From the record before me, I conclude that relator has exhausted his state court remedies and is thus not barred from making the present application. 28 U.S. C. § 2254. I also find from the record that the constitutional rights of relator have been protected and that the petition should be denied.

Relator was arrested at about 8:00 P.M. on Monday, August 10, 1960, and the relator's confession was stenographically recorded between 2:15 A.M. and 2:55 A.M. on August 14, 1960. Relator does not deny that he had counsel from the morning after his arrest until he confessed and was arraigned and charged with murder. Moreover, during this period relator had numerous visits from members of his family. Relator claims that it was these visits which caused him to make his statement confessing to the various crimes. He also claims that his counsel urged him to confess because of pressure put on counsel by relator's family and community.

I find that relator was advised by his counsel that he was under no obligation to make any statement. He was also advised by counsel to cooperate with the police and tell them the truth. The strategy of counsel at this time was a planned defense of insanity, which was subsequently used at the trial. Because this defense failed relator cannot now claim incompetency of counsel. Relator's claim that his confession was obtained by the cooperation of his counsel with the police and that his counsel was incompetent are lacking in specific factual allegations and are conclusory in nature.

I also find no merit in relator's claim that his confession was involuntary. Before he confessed, relator had numerous conferences with members of his family and his attorney. Relator was not beaten, starved or tortured. He was in no way subjected to physical or mental punishment. Relator's sole basis for this charge appears to be that his confession was "involuntary in the sense that it was not the product of the free will of the prisoner." Relator claims that "The confession obtained on the morning of August 14th was the product of continued and overpowering interrogation which broke the will of the prisoner to insist upon his innocence. Its receipt into evidence was therefore in violation of relator's rights under the Constitution of the United States." Apparently, relator bases his charge on the ground that he was continuously questioned. However, the mere fact that a confession was obtained by constant questioning is not enough to make it involuntary. As was pointed out above, relator was not in isolation but was in constant touch with his family and attorney. As was said in Crooker v. California, 357 U.S. 433, 437, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958):

"The bare fact of police `detention and police examination in private of one in official state custody' does not render involuntary a confession by the one so detained. Brown v. Allen, 344 U.S. 443, 476 73 S.Ct. 397, 97 L.Ed. 469 (1953). Neither does an admonition by the police to tell the truth, Sparf v. United States, 156 U.S. 51, 55-56 15 S.Ct. 273, 39 L.Ed. 343 (1895), nor the failure of state authorities to comply with local statutes requiring that an accused promptly be brought before a magistrate. Fikes v. Alabama, 352 U.S. 191 77 S.Ct. 281, 1 L.Ed. 2d 246 (1957)."

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