The opinion of the court was delivered by: WORTENDYKE
Petitioner (Wade) is serving a life sentence in the custody of Respondent upon his conviction March 31, 1961 of first degree murder in the Passaic County Court of the State of New Jersey. His previous petition for writ of habeas corpus to this Court, Docket C-1032-63, 245 F. Supp. 62, was dismissed by my order of March 5, 1964. He has not appealed from that order.
On April 23, 1965 Wade filed in this Court a second petition for a writ of habeas corpus which makes the following assertions:
(1) He was denied his constitutional right to the assistance of counsel;
(2) There was a systematic exclusion of negroes from the grand and petit juries in the County in which he was tried;
(3) His confession was involuntary;
(4) His conviction was founded upon the fruits of an illegal search and seizure; and
(5) His indictment was illegal because it resulted from an illegally obtained confession.
Wade's presently pending petition discloses that he has sought and been denied post-conviction relief pursuant to N.J.R.R. 3:10A-1 et seq. The record in those proceedings discloses that petitioner therein contended (1) that there had been a systematic exclusion of negroes from the grand jury and trial jury panels in the County of trial; (2) that the statement elicited from him and used as evidence against him was obtained after he had been assigned counsel; (3) that his confession was inadmissible in evidence because induced by the administration of a "truth serum"; and (4) that evidence obtained by the New York Police Department was illegally admitted upon his trial, because obtained by illegal search and seizure. The same contentions are presently urged on the pending petition, in addition to petitioner's attack upon the indictment, which may not be urged in these proceedings, Holt v. United States, 1910, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021; Costello v. United States, 1956, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397; Lawn v. United States, 1958, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321. In granting the State's motion to dismiss the post-conviction proceedings on February 19, 1965, Judge Kolovsky, of the New Jersey Superior Court, held each of the foregoing grounds there urged by Wade untenable.
In disposing of Wade's "conclusory statement" that negroes were systematically excluded from grand and trial jury panels in the County of trial, the learned Judge said:
"our rules require that challenges to the array be made before the trial begins * * * More important there is nothing in this petition for post conviction relief other than the conclusionary [sic] statement that there was such exclusion. No facts are given in support of those statements. I would not be warranted in setting this petition down for hearing on those charges for several reasons: In the first place, this issue as to the alleged systematic exclusion of jurors should have been raised before or at least at the trial. That the experienced trial counsel would have raised that issue if there were any factual basis therefor is clear from what occurred at and before the trial. The trial record discloses that the defense attorneys during the selection of the jury charged that there had been discrimination in selecting jurors who were picked from the highways and byways. That issue was decided adversely to defendants. Counsel's failure to assert that there was exclusion of negroes from the panels of grand jurors and petit jurors selected by the Jury Commission was obviously deliberate."
That Court correctly pointed out that the procedural requirements of the State rule (supra) relating to challenges to the array of jurors were valid, and that failure of timely compliance therewith precluded any right of subsequent attack. Reece v. State of Georgia, 1955, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77; Coleman v. State of Alabama, 1964, 377 U.S. 129, 84 S. Ct. 1152, 12 L. Ed. 2d 190. Wade did not criticize the composition of either the grand or the petit jury in his case either on appeal to the New Jersey Supreme Court from his conviction, or in his previous habeas corpus petition to this Court. The analysis of the State Court record which induced me to deny Wade's petition in C-1032-63 clearly discloses that he had ample opportunity to attack, but expressed no objection to the composition of his grand and petit juries. His present contention is an unwarranted afterthought. As was said in Townsend v. Sain, 1963, 372 U.S. 293, at p. 319, 83 S. Ct. 745, at p. 760, 9 L. Ed. 2d 770:
"We are aware that the too promiscuous grant of evidentiary hearings on habeas could both swamp the dockets of the District Courts and cause acute and unnecessary friction with state organs of criminal justice, while the too limited use of such hearings would allow many grave constitutional errors to go forever uncorrected. The accommodation of these competing factors must be made on the front line, by the district judges who are conscious of their paramount responsibility in this area."
I give respectful heed to this admonition by rejecting Wade's first ground asserted in his New Jersey post-conviction petition and reasserted here. It is presently asserted too late, after the many pretrial, trial, post-conviction and appellate opportunities which petitioner has had, for its ...