The opinion of the court was delivered by: COHEN
Petitioner, Bobby L. Mayberry, seeks a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2241, et seq., attacking the legality of his confinement in the New Jersey State Prison, as a result of his conviction by a jury of robbery (N.J.S.A. 2A:141-1), while armed (N.J.S.A. 2A:151-1), upon which he was sentenced to consecutive terms of imprisonment of 12 to 15 and 3 to 5 years respectively.
Upon the filing of an answer by the respondent, Howard D. Yeager, Principal Keeper of the New Jersey State Prison, the cause was duly referred to the Honorable Michael Keller, Jr., United States Magistrate for the District of New Jersey, pursuant to General Rule 40, subd. E(3)
of the Local Rules of this Court, for his preliminary review, report and recommendation, as to whether a hearing is warranted.
An extensive and independent review has been made of the pleadings, pertinent state court records, transcript of testimony, and briefs, as required by 28 U.S.C. § 636(b)(3) and Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). As well, a very careful assessment has been made of the Report and Recommendation submitted by the United States Magistrate Michael Keller, Jr., wherein he recommends that the petition be dismissed on the grounds that no plenary hearing is warranted and that this Court certify that there exists no probable cause for appeal. We are in full accord with that recommendation for the reasons so excellently stated by the Magistrate. A copy of his Report and Recommendation is attached hereto and filed as part of this Opinion and Order.
Now, therefore, it is on this 7th day of January, 1971 ordered and adjudged that the petition of Bobby L. Mayberry for a writ of habeas corpus be and is dismissed hereby; and
It is further ordered that the Report and Recommendation of the United States Magistrate be and is hereby adopted as the Opinion of this Court; and
Furthermore, it is certified that no probable cause exists for an appeal herefrom.
REPORT AND RECOMMENDATION
Pursuant to General Rule 40, subd. E(3)
of the Local Rules of this Court, this matter was referred to me as United States Magistrate for preliminary review, report and recommendation as to whether a hearing is required.
The petitioner, Bobby L. Mayberry, seeks issuance of a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2241, et seq., attacking the legality of his confinement in the New Jersey State Prison. He was convicted in October, 1966 of armed robbery on August 12, 1965 of a Shop Rite Market. (N.J.S.A. 2A:141-1; 151-5). In November, he was sentenced to consecutive terms of imprisonment for both convictions of 12 to 15 and 3 to 5 years, respectively; these terms to run consecutively to a life sentence imposed in January, 1966 for a murder conviction.
On appeal, the conviction for armed robbery was affirmed by the Superior Court of New Jersey, Appellate Division, in its unpublished per curiam opinion of June 6, 1968 (Exhibit R-9). Petitions for certification and certiorari were denied, respectively, by the New Jersey Supreme Court, State v. Mayberry, 52 N.J. 493, 246 A. 2d 452 (1968) and by the United States Supreme Court, 393 U.S. 1122, 89 S. Ct. 1003, 22 L. Ed. 2d 128 (1968).
The following is a summary of the grounds asserted for relief:
1. The Trial Court's exclusion of the petitioner's children (ages 5, 6 years and 15 months) during the trial deprived him of a public trial.
2. Denial of a motion for change of venue because of publicity prior to trial and failure to grant a continuance.
3. Denial of a motion to sequester the jury; failure of Court to permit proper voir dire; failure of Court to furnish proper instructions to jury with respect to news media reports during trial; failure of Court to grant an adjournment of trial.
4. Admission of testimony that "getaway" auto was stolen and failing to give limiting instructions concerning such testimony.
5. The conviction and sentence for the separate offenses of robbery, while armed, constituted double jeopardy.
7. (a) Misconduct of Prosecutor in questioning two defense witnesses during a continuance the defense had obtained for the purpose of reinterviewing said witnesses to prepare for a reply to the State's rebuttal.
(b) Informal and ex parte action by the Trial Judge in advising the Prosecutor that such procedure was permissible.
8. Admission of fingerprint evidence obtained during an illegal detention subsequent to an illegal arrest. (The petition also indicates that this ground was not urged before the New Jersey Supreme Court "through inadvertence of the Public Defender." However, an examination of Exhibit R-10, page 14, discloses that it was listed without any reference thereto in the brief.)
With repetitions, a total of 34 grounds for relief were submitted on the appeal to the Superior Court of New Jersey, as set forth in Exhibits R-1 to R-4, inclusive. The Petitioner and Respondent have submitted various State records, briefs, etc., which have been marked as exhibits and are set forth in an Appendix filed herein. In one form or another, they included the grounds now urged. It would appear that ground #6, above, may not have been submitted to the New Jersey Supreme Court. However, it is concluded that the petitioner has substantially and sufficiently exhausted his state remedies in good faith and is properly before this Court. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953).
The per curiam opinion of the Superior Court of New Jersey, Appellate Division, contained no specific findings and merely concluded that the grounds urged were without merit. Some of the grounds raised here involve only issues of law and require no hearing. Others involve mixed questions of law and fact, but it is not urged that any new or different evidence would be offered. As to the latter, however, the transcripts of the hearing on the pretrial motion and the trial, together with the various briefs, etc., submitted, constitute ...