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August 30, 1968

UNITED STATES of America ex rel. Daniel BUTTCHER, Petitioner,
Howard YEAGER, Warden of Prison, Respondent

Coolahan, District Judge.

The opinion of the court was delivered by: COOLAHAN

COOLAHAN, District Judge:

 This is an application for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., which the court has permitted the petitioner to file in forma pauperis. Petitioner is currently confined to the New Jersey State Prison, at Trenton, New Jersey, where he is serving a sentence of life imprisonment for murder; sentence was imposed by the Middlesex County Court on June 6, 1966.

 Because petitioner pleaded non vult to the charges against him, he did not appeal his conviction. Instead, he filed a petition for post-conviction relief, pursuant to R.R. 3:10A, with the Middlesex County Court. This application was denied by that court, and ultimately by the New Jersey Supreme Court. Because petitioner has exhausted his state remedies all the way to New Jersey's highest court, it becomes clear that he is properly before this court, with respect to issues litigated in his state appeal. See 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

 Petitioner here claims that there was constitutional error in his conviction, in that: 1) his plea was induced by promises of counsel that he would be sentenced to no more than 30 years in state prison; 2) sentence imposed on the petitioner was unlawful, in that his plea of non vult to the charges against him could only effect a conviction of second degree murder; 3) the state law defining the punishment for murder is unconstitutional in that it unduly encourages defendants such as the petitioner to plead non vult to indictments charging them with murder. It is the court's view, however, that all three of these claims are without merit.

 Petitioner's first constitutional complaint - promises of counsel - was considered extensively by the Middlesex County Court during the petition for post-conviction relief. That court held a hearing on the subject, giving petitioner a full opportunity to support his position. He determined not to take the stand during the hearing, relying instead on his own affidavit and that of his father, Charles Buttcher. The witness for the state was petitioner's attorney, Francis J. Lutz, Esq. He was examined and cross-examined thoroughly. At the end of the hearing it was the court's finding that:

it is a fact that this defendant pled guilty with full knowledge of the implication of the sentence without any promise having been made to him by anyone. * * *
I'm sure that he [Mr. Lutz] conveyed to the defendant perhaps a hope that it might be limited to twenty to thirty years, but I'm sure that Attorney Lutz notified this defendant that he, Lutz, had received no promises from the Court, and that the plea when made was made with the full realization by this defendant of the possibility of his getting a life sentence.

 Petitioner's contention as to the illegality of his sentence is likewise invalid. It is his contention that permission for the trial judge to sentence a defendant pleading non vult to life imprisonment (the sentence for first degree murder) is inconsistent with the presumption, in New Jersey law, that a murder is of a second-degree variety. As perceived by this court, the question presented is one of solely New Jersey law, which has been determined against petitioner's position, *fn1" and no constitutional problem can be seen. Habeas corpus relief will not be granted here either.

 Petitioner's last argument in support of his application for issuance of a writ of habeas corpus raises some interesting questions. Citing the recent decision of the United States Supreme Court in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), *fn2" which involved the constitutionality of death penalty provisions of the Federal Kidnapping Act, 18 U.S.C. § 1201(a), petitioner contends that the New Jersey death penalty statute, like the Federal Kidnapping Act, unduly encourages pleas of guilt (here, non vult) from defendants, in violation of due process of law under the Fifth Amendment and the right to a jury trial granted by the Sixth Amendment of the United States Constitution. This issue was decided against the petitioner's position by the New Jersey Supreme Court in the decision of State v. Forcella, 52 N.J. 263, 245 A.2d 181, July 3, 1968, which distinguished provisions of the New Jersey statute from those of the federal Act. It is not necessary that this court consider whether the Jackson case is applicable to the New Jersey statute, for, in the court's view, even assuming that Jackson were applicable, there is nothing in the Jackson opinion which indicates that retroactivity of the rule of law announced in that opinion would be either necessary or proper.

 The proper rule of law on the question of retroactivity was recently stated by the Supreme Court of the United States in the decision of Stovall v. Denno, 388 U.S. 293, 296-297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967):

Our recent discussions of the retroactivity of other constitutional rules of criminal procedure make unnecessary any detailed treatment of that question here. Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601, supra; Tehan v. United States ex rel. Shott, [382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453,] supra; Johnson v. State of New Jersey, [384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882,] supra. "These cases establish the principle that in criminal litigation concerning constitutional claims, 'the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application' * * *." Johnson, supra, 384 U.S., at 726-727, 86 S. Ct. at 1777. The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

 It is this court's view that the petitioner in the present case fails to come up to the standards enunciated in Stovall in every respect; as a result, the Jackson decision will not compel this court to grant ...

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