United States v. Murphy
| Citation | 245 F.2d 751 |
| Parties | UNITED STATES ex rel. Willie LOWERY, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, New York, Respondent-Appellee. |
| Decision Date | 26 June 1957 |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Willie Lowery, pro se.
Louis J. Lefkowitz, Atty. Gen., State of New York (Lawrence H. Rogovin, Deputy Asst. Atty. Gen., of counsel), for respondent.
Before HAND, LUMBARD and WATERMAN, Circuit Judges.
The petition for a certificate of probable cause, for appointment of counsel, and for leave to appeal in forma pauperis from Judge Brennan's denials of a writ of habeas corpus is denied.
From the two petitions filed by Lowery it appears that he was convicted on July 8, 1952 in the Court of General Sessions for the County of New York of possessing narcotics for the purpose of sale in violation of § 1751(2) of the New York Penal Law, McK.Consol.Laws, c. 40. His petitions admit that when he was arrested on May 18, 1952 the police officers found secreted in the collar of the overcoat he was wearing, some glassine envelopes which contained 167 grains of heroin.
Lowery's complaint seems to be that another paragraph of § 1751(2) was amended to take effect on July 1, 1952, after his offense and before his trial. This amendment reduced from two ounces to one ounce the quantity of narcotics possession of which was sufficient to raise a presumption of an intent to sell. What that subdivision provided prior to July 1, 1952, and after that date is wholly immaterial as Lowery's petition states that the trial judge did not charge the jury under this subdivision. Thus, according to Lowery's own statements, the presumption was not applied against him to supply the requisite proof of intent to sell the heroin. As the possession of 167 grains1 of heroin with intent to sell is a violation of the statute, and as that intent could well have been shown by the proofs before the jury without reference to any presumption, it seems obvious that Lowery's claim is frivolous.
Thus from what was before the District Court it is crystal clear that the petitioner presented no federal question. Judge Brennan so held in two carefully considered opinions filed on April 23 and May 7, 1957. Where no federal question is presented the District Court need go no further; indeed, the District Court should go no further. There was no basis for the application, and the district judge properly decided the petition without a hearing. There is no basis for an appeal; to appoint counsel would be a needless imposition on some member of the bar. We have so held in two cases decided on May 15, 1957, United States ex rel. Tierney v. Richmond, 245 F.2d 222, and United States ex rel. Jones v. Richmond, 245 F.2d 234.
It is well...
To continue reading
Request your trial
-
Weller v. Dickson
...cases make a distinction between civil and criminal cases, as to the right to proceed in forma pauperis on appeal. United States v. Murphy, 2 Cir., 1957, 245 F.2d 751 (habeas corpus); Hill v. Settle, 8 Cir., 1957, 244 F.2d 311 (habeas corpus); Gershon v. United States, 8 Cir., 1957, 243 F.2......
-
United States v. Herold
...of the New York Courts to grant a certificate of reasonable doubt and set reasonable bail pending state appeal. (United States ex rel. Lowery v. Murphy, 2 Cir., 245 F.2d 751; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683). His other contention that may enter the federal domain......
-
People v. Breslin
...as to whether a defendant was constitutionally entitled to be assigned counsel in a habeas corpus proceeding (United States ex rel. Lowery v. Murphy, 2 Cir., 245 F.2d 751; Thompson v. Johnston, 9 Cir., 160 F.2d 374, certiorari denied 331 U.S. 853, 67 S.Ct. 1738, 91 L.Ed. 1861; Brown v. John......
-
Schlette v. People of State of California
...attacking a state court judgment in the federal courts. Anderson v. Heinze, 9 Cir., 1958, 258 F.2d 479, 484; United States ex rel. Lowery v. Murphy, 2 Cir., 1957, 245 F.2d 751, 752." Finding no error, we affirm the order of the district HAMLEY, Circuit Judge (concurring). I concur in every ......