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March 5, 1964

Nathaniel WADE, Petitioner,
Howard YEAGER, Warden, New Jersey State Prison, Respondent

Wortendyke, District Judge.

The opinion of the court was delivered by: WORTENDYKE

WORTENDYKE, District Judge:

This is an application for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2241 et seq., for review of petitioner's conviction in the Passaic County Court (of New Jersey) on March 31, 1961, of first degree murder. He is presently serving a life sentence thereon in New Jersey State Prison.

 Petitioner appealed from the conviction to the New Jersey Supreme Court which affirmed, State v. Wade, 1963, 40 N.J. 27, 190 A.2d 657. The petitioner here urges, in support of his application for the writ, the same grounds upon which he sought reversal in the New Jersey Supreme Court, and no others.

 In accordance with the directive expressed in Brown v. Allen, 1953, 344 U.S. 443, 457, 463-464, 73 S. Ct. 397, 97 L. Ed. 469, and Townsend v. Sain, 1963, 372 U.S. 293, 319, 83 S. Ct. 745, 9 L. Ed. 2d 770, I have carefully examined and conscientiously considered the transcript of the trial testimony (which, including the voir dire examination of jurors, summation of counsel and court's charge, aggregates 4,956 pages) insofar as it relates to the three grounds presently urged by the petitioner and already decided by the New Jersey Supreme Court. The transcript reveals that, with respect to the three grounds of the present petition, the trial judge and jury resolved the material facts, pursuant to a fair hearing supported by the record, and no newly-discovered evidence has been presented in regard to these grounds. Consequently, there is no need for, nor would it be appropriate to grant, a hearing before this Court for the present petitioner. Townsend v. Sain, supra, pp. 312-318, 83 S. Ct. pp. 756-760.

 With respect to petitioner's first ground, namely that his constitutional rights were infringed by the trial court's admission in evidence of an alleged confession obtained from him in violation of the principles of due process, the evidence in the case has been accurately and comprehensively summarized by Mr. Justice Schettino of the New Jersey Supreme Court in that Court's opinion, with which I independently concur, on petitioner's appeal. *fn1" In upholding the admission of Wade's confession by the trial court, the New Jersey Court said:


"Thus, the issue of voluntariness is reduced to a question of whether the demerol injection deprived Wade 'of a rational intellect and a free will.'" [Citing Blackburn v. State of Alabama, 1960, 361 U.S. 199, 208, 80 S. Ct. 274, 4 L. Ed. 2d 242.


"A confession made by a person while under the influence of drugs is not per se involuntary. State v. Wise, [19 N.J. 59, 115 A.2d 62 (1955)], 19 N.J. at pp. 85-92, [115 A.2d 62 at pp. 75-79. * * *"


"The State did not contest the testimony of Doctor Schmidt that Wade was probably under the influence of the demerol injection for about four hours. The sharp conflict of testimony exists as to the effect of the demerol injection on Wade; he claimed he was nauseous, dizzy and 'in a fog' and did not know what he was doing; the detectives testified that he appeared normal and spoke coherently. Doctor Schmidt could not testify as to the effect of the injection on Wade but was of the opinion that, although the reaction may differ with the person, it probably had little effect on Wade. * * * As we view the record, the trial court fulfilled its heavy responsibility in determining that the State had carried its burden of proving that appellant's will had not been overborne and that the requirements of due process had not been violated, insofar as the admission of the confession is concerned." (40 N.J. at pp. 35-36, 190 A.2d at pp. 661-662).

 Although I recognize that this Court is not bound by the decision of the New Jersey Supreme Court, Fay v. Noia, 1963, 372 U.S. 391, 421-422, 83 S. Ct. 822, 9 L. Ed. 2d 837, the evidence of the voluntariness of the confession was in dispute. Therefore the State court's findings of fact, as affirmed by the New Jersey Supreme Court, are persuasive. United States ex rel. Smith v. State of New Jersey, 3 Cir. 1963, 323 F.2d 146, 151. The New Jersey Supreme Court also applied the appropriate standard for the voluntariness of a confession under the Fourteenth Amendment; see Townsend v. Sain, supra, 372 U.S. 307-309, 83 S. Ct. 754-755. In distinguishing Townsend, the New Jersey Court correctly concluded that petitioner's will was not "overborne" or "his capacity for self-determination seriously impaired" by the administration of the demerol injection several hours earlier. My independent examination of the record in this case brings me to the same conclusion reached by the New Jersey Supreme Court upon the evidence presented to the trial court. I adopt its summary of that evidence, and concur in its discernment of the voluntariness of the confession by the standard of the Fourteenth Amendment, in those facts.

 The present petitioner's second ground is found in his contention that, in the words of Justice Schettino (40 N.J. at p. 37, 190 A.2d at p. 662), "he was entitled to have the trial court charge the jury on second degree murder and manslaughter, as it did with respect to defendant John Wade [brother and codefendant of Nathaniel], because he could not be guilty of a higher offense than that of his codefendant if he had in fact been an aider and abettor." That is a matter involving no deprivation of Federal constitutional rights and is appropriately presentable only on appeal. In addition, Wade urges here, as he did in the New Jersey Supreme Court, that certain comments of the Prosecutor in his summation to the trial jury were so prejudicial as to amount to a denial of a fair trial for the petitioner. As was accurately pointed out in Justice Schettino's opinion, a reading of the entire summation eliminates any justifiable basis for inference that the particular comments singled out by the petitioner from the Prosecutor's summation were prejudicial. Moreover, it is elementary that had such remarks been prejudicial, such would likewise be matter for appellate review rather than habeas corpus. United States ex. rel. Saunders v. Myers, 3 Cir. 1960, 276 F.2d 790; United States ex. rel. Birch v. Fay, D.C.N.Y.1961, 190 F. Supp. 105.

 For the reasons aforesaid, the petition of Nathaniel Wade for a writ of habeas corpus filed in this Court on December 5, 1963, is dismissed.

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