vult was not made by the petitioner; that the plea was made by assigned counsel and was accepted without a determination by the Court that it was voluntary and made with an understanding of the nature of the accusation; that the acceptance of the plea by the court under the circumstances constituted manifest injustice and violated constitutional due process. The motion to withdraw the plea of non vult was granted by order of the Assignment Judge in Middlesex County on December 16, 1960. The judgment of conviction and sentence was vacated, and a plea of not guilty to the indictment was again entered in behalf of the defendant. Mr. Eber's assignment as counsel was continued for the purpose of the trial. A subsequent motion in behalf of petitioner, through Mr. Eber, to limit petitioner's guilt under the indictment to murder in the second degree was denied by order filed February 23, 1961.
Mr. Eber, moreover, participated actively in behalf of petitioner at the pretrial conference of March 27, 1961, which resulted in the order of that date, reciting that petitioner agreed that he would not question the competency of John Coleman as a prospective witness, if called by the State, upon the approaching new trial, which was fixed therein to commence on April 17, 1961. At the conclusion of that trial, petitioner was again convicted of first degree murder. Following the judgment of conviction, Mr. Eber moved for a new trial in behalf of the petitioner, urging ten separate grounds therefor. The motion was denied.
This Court has obtained the trial transcripts of all of the trials in which petitioner has been a party upon the indictment charging him with first degree murder; they aggregate the stupendous total of almost 9500 pages. Assuming that this Court were able to find the time to read all the testimony of the witnesses whom the petitioner now claims should have been called on the last trial, such an Herculean effort would not enable this Court to determine whether Mr. Eber, petitioner's trial counsel, was justified in the strategy which he employed by the situation confronting him. Even accepting as a fact that the many witnesses who testified previously would have testified in petitioner's most recent trial as he now claims they would have, a perusal of the 289 pages embodying the cross-examination of Coleman by Mr. Eber, indicates conclusively that petitioner's attorney achieved by that cross-examination alone, a result which, in the judgment of this writer, could be considered by the jury as completely effective to discredit Coleman.
Mr. Eber could reasonably have concluded that the effect obtained on his cross-examination would have been vitiated by putting on an additional thirty-one witnesses during the defendant's case in an already protracted trial. And assuming those witnesses would have testified as petitioner says they would have, Mr. Eber could also have concluded that they would not have added much more to what he had already elicited from Coleman on cross-examination. I must, therefore, conclude that Mr. Eber could have reasonably concluded, as part of a rational plan of defense, that it would be better strategy to rely solely on his cross-examination, and not call the thirty-one additional witnesses. Mr. Eber's conduct, as counsel, on this aspect of the trial, did not therefore constitute ineffective representation of the petitioner and did not deny him due process of law.
Because the allegations of the petition, as supplemented by the brief and statement filed with the State appeal, and the transcript of the trial, do not on their face reveal any merit to petitioner's claim of denial of effective representation by Mr. Eber as a ground for habeas corpus, the petition will be dismissed without the necessity for any additional examination by the Court of the facts supporting the petition, United States ex rel. Darcy v. Handy, supra, 203 F.2d 427-428. There is thus no question of whether this Court should hold an evidentiary hearing on the petition pursuant to Townsend v. Sain, 1963, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770.
It is, therefore, on this 15th day of June 1964, Ordered, for the reasons hereinabove stated, that the petition of Bland Williams for a writ of habeas corpus be and hereby is dismissed.