United States v. McMann, 107

• Citation: 348 F.2d 896
• Decision Date: 23 July 1965
• Docket Number: No. 107,Docket 27990.,107
• Parties: UNITED STATES of America ex rel. Floyd Edgar MARTIN, Relator-Appellant, v. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

348 F.2d 896 (1965)

UNITED STATES of America ex rel. Floyd Edgar MARTIN, Relator-Appellant, v. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.

No. 107, Docket 27990.

United States Court of Appeals Second Circuit.

Argued October 1, 1964.

Submitted May 26, 1965.

Decided July 23, 1965.

Charles A. Goldstein, New York City (Strasser, Spiegelberg, Fried & Frank, New York City) (Anthony F. Marra, The Legal Aid Society, New York City), for relator-appellant.

Joel Lewittes, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of New York; Samuel A. Hirshowitz, First Asst. Atty. Gen., Michael H. Rauch, Deputy Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and ANDERSON, Circuit Judges.^*

Submitted to the in banc Court May 26, 1965.

PER CURIAM.

Martin's petition for habeas corpus alleges that the admission in evidence of two confessions, one taken after his arrest but before preliminary examination by a magistrate and the other after the examination, in his 1946 New York trial for first degree murder, violated his constitutional rights. When the case was last before us, 319 F.2d 897 (1963), we affirmed Judge Foley's order denying the petition, 208 F.Supp. 562 (1962), see also 187 F.Supp. 395 (1960), without reaching the merits, on the sole ground that, despite People v. Howard, 12 N.Y. 2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962), cert. denied, 374 U.S. 840, 83 S.Ct. 1893, 10 L.Ed.2d 1060 (1963), we were not convinced that New York on coram nobis would refuse to consider Martin's contention that his post-examination confession had been obtained in violation of his right to the assistance of counsel. New York having declined to do so, we vacated our order of affirmance and reinstated Martin's appeal. Since the argument on his behalf concerned the implications of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), we subsequently directed that his case be considered in banc along with six other appeals raising problems in that area.

Three weeks after our order of June 1, 1964, vacating our previous affirmance, the Supreme Court handed down its decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), invalidating New York's procedure whereby the issue of the voluntariness of confessions such as Martin's was submitted to the jury without a previous finding of voluntariness by a judge. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), makes it plain that, because of that ruling, Martin now is entitled to state coram nobis in which, aided by counsel, he may have the voluntariness of his confessions passed upon by a judge. Although it is not entirely clear whether the coram nobis hearing will embrace all the claimed denials of constitutional rights that Martin has asserted before us, the adequacy of the warnings given him and the lack of counsel are so closely related to the issue of voluntariness, see Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), that they seem certain to figure in the state hearing in some degree.

Since under any view Martin is entitled to a New York coram nobis hearing, we are persuaded that...