United States v. Martin

• Decision Date: 13 October 1960
• Citation: 283 F.2d 344
• Parties: UNITED STATES ex rel. Ralph DARLING, Relator-Appellant, v. Walter B. MARTIN, Warden, Attica State Prison, Attica, New York and The People of the State of New York, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

283 F.2d 344 (1960)

UNITED STATES ex rel. Ralph DARLING, Relator-Appellant, v. Walter B. MARTIN, Warden, Attica State Prison, Attica, New York and The People of the State of New York, Respondents.

United States Court of Appeals Second Circuit.

Motion Submitted August 22, 1960.

Decided October 13, 1960.

Ralph Darling, relator-appellant, pro se.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Stephen Mindell, Brooklyn, for respondents.

Before MEDINA, WATERMAN and MOORE, Circuit Judges.

PER CURIAM.

Relator is presently incarcerated in Attica State Prison, Attica, New York, by virtue of a final judgment of the County Court of Broome County in the State of New York, as a second felony offender, for a term of from ten to twenty years. His application for a writ of habeas corpus to the United States District Court for the Western District of New York was denied without a hearing and his application for a certificate of probable cause was denied. He now moves in this Court for leave to prosecute in forma pauperis an appeal from the order denying his application for the writ.

We find in relator's papers sufficient to require a hearing at which the following issues shall be determined:

(1) Whether, as claimed, relator's court assigned attorney was so remiss in his preparation for trial as to make the trial a farce and shock the conscience of the court. In this connection we interpret relator's charge to be that there were certain alibi witnesses whose names were given to counsel but that counsel did not interview such witnesses nor did he produce them upon the trial. See United States ex rel. Bevilacqua v. Reincke, D.C.Conn.1956, 147 F.Supp. 933.

(2) Whether, either pursuant to Section 4 of the New York Judiciary Law, or otherwise, relator was convicted at a closed trial from which all persons were excluded. See In re Oliver, 1948, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Melanson v. O'Brien, 1 Cir., 1951, 191 F.2d 963; People v. Jelke, 1954, 308 N.Y. 56, 123 N.E.2d 769, 48 A.L.R.2d 1425. An affidavit signed by sixty-one neighbors and relatives states that relator "was tried in closed court and no one allowed in the court."

(3) Whether the prosecution wilfully submitted to the court and jury perjured testimony. While this charge is only made obliquely and standing alone might not be sufficient to require a hearing, relator does charge that a principal witness against him had recanted his testimony and had signed an affidavit to that effect,...