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August 24, 1971

UNITED STATES of America ex rel. Troy VICTOR, Petitioner,
Howard YEAGER, Warden, Respondent

Lacey, District Judge.

The opinion of the court was delivered by: LACEY


LACEY, District Judge:

 Petitioner, Troy Victor, proceeding pro se, seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., attacking the legality of his confinement in New Jersey State Prison.

 Upon the filing of respondent's answer, the cause was referred to the Honorable John W. Devine, United States Magistrate, pursuant to 28 U.S.C. § 636(b)(3) and General Rule 40E(3), for his preliminary review and report, and recommendation to this Court as to whether a hearing is warranted.

 This Court has conducted an independent review, in compliance with Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), of the petition for the writ, the answer of respondent, the exhibits, and the report and recommendation of the Federal Magistrate, which is filed with this Memorandum and Order. The following is to supplement the Magistrate's report and recommendation.

 This proceeding dramatizes the growing abuse of the Great Writ by distorting it into an appellate review of state court proceedings.

 The relator was convicted and sentenced in the Essex County Court in June 1968; the Appellate Division affirmed the conviction on September 30, 1970; the New Jersey Supreme Court denied certification on November 17, 1970, 57 N.J. 210, 271 A. 2d 5; and the United States Supreme Court denied certiorari on March 22, 1971, 401 U.S. 981, 91 S. Ct. 1216, 28 L. Ed. 2d 332. Within two months thereafter the instant petition was filed, its text drawn principally, and largely verbatim, from the briefs filed in the state courts.

 Whatever merit there may have been on direct review to petitioner's contentions, they do not require constitutional adjudication on collateral review. Nonetheless, the Magistrate, and this Court, to render a determination herein, had to read almost 600 pages of trial transcript and 75 pages of briefs and opinion. A dire prediction, based on the current substantial trend, can be made: the time is not far distant when virtually every convicted defendant will seek further "appellate" review by habeas corpus immediately after state appellate affirmance of his conviction.

 Even partial fulfillment of this prophecy will cripple the District Court of this district. The intrusion of these matters even now consumes a substantial part of the Court's available time.

 Under date of May 26, 1971, Honorable Quentin N. Burdick (Sen. N. Dak.), Chairman of the United States Senate's Subcommittee on Improvements in Judicial Machinery to the Senate's Committee on the Judiciary, transmitted to the federal judiciary a draft bill (S. 1876) providing for comprehensive revision of certain sections of Title 28 of the United States Code. An extract from the Congressional Record (92d Cong., 1st Session, vol. 117, May 14, 1971, pp. 1 et seq.), transmitted therewith, highlights a portion of a statement of former Chief Justice Warren which led to a 10-year study of federal court jurisdiction by the American Law Institute:


It is essential that we achieve a proper jurisdictional balance between the federal and state court systems, assigning to each system those cases most appropriate in light of the basic principles of federalism.

 This extract, which is Senator Burdick's presentation of S. 1876 to the Senate, points with alarm to the unprecedented increase in 1970 in the cases pending in the United States District Courts; states that the number in 1970 was up 10% in just one year; and that it represented a 66% increase over 1960. Senator Burdick then states:


* * * In light of these changes, it is appropriate for Congress to examine the jurisdiction of the Federal Courts.

 It is indeed appropriate, and terribly necessary. With rare exceptions, a habeas corpus petitioner asserts grounds requiring a reading of the entire trial transcript. With Jackson v. Denno, Stovall v. Denno, and Mapp hearings, further enlarging the record in many cases, the petition which does not require reading several hundred pages of transcript is the exception. The burdens sought to be lifted from the federal judiciary by S. 1876 are light and tolerable contrasted with those imposed by the habeas corpus jurisdiction. It is to the latter to which all three branches of government should devote concentrated and concerned attention. *fn1"

  In addition to the threatened inundation of the federal court system and the unsettling effect upon the delicate federal-state balance stemming from the habeas corpus procedure, there is another pernicious result: a lack of finality, with all that is entailed, for society generally, the defendant himself, and law enforcement. See Justice Harlan, concurring in Nelson v. O'Neil, 402 U.S. 622, 630, 91 S. Ct. 1723, 1728, 29 L. Ed. 2d 222 (1971):


I venture to repeat what I stated earlier this Term in Mackey, supra : "No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved."

 The case at bar is an example of what is being presented so often to the federal courts by way of habeas corpus. The relator, who did not take the stand at trial, gave the court and jury no basis for considering a verdict of guilty of voluntary manslaughter, that is, that he killed the victim while acting in a "heat of passion * * * a passion which effectively deprives the killer of the mastery of his understanding and which is acted upon before a time sufficient to permit reason to resume its sway * * *." State of New Jersey v. Fair, 45 N.J. 77, 96, 211 A. 2d 359, 369 (1965). As stated in State of New Jersey v. Gosser, 50 N.J. 438, 453-454, 236 A. 2d 377, 385 (1967), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1967):


* * * [There was not] sufficient evidence that the killing was in passion or heat, let alone with legally adequate provocation. Such evidence, if it was the fact, could only have been furnished by the defendant and he declined to testify.

 What was relator's defense at trial? It was that he did not commit the murder, that he was not on the premises where the murder was committed, when it was committed, a position hardly consistent with what he now urges. *fn2"

 Thus, relator's trial counsel, in opening to the jury, stated in effect that his client was not on the premises where, and when the shooting took place. (T-14; R-1). *fn3" Thereafter, the prosecutor in making a proffer of proof stated to the court: "* * * his opening was that he wasn't there * * * it would seem that the defense in this case is one of some sort of an alibi that he was not there at the time this happened * * *." (T-154; R-1). Defense counsel failed to respond to this characterization of the defense case.

 Later, in colloquy with the trial court, defense counsel said: "Well, my position is that we didn't do it * * *. We weren't there * * *." (T-2.59; R-1).

 On the defendant's case his lawyer called as a witness a young man whom he had referred to in his opening as one who had accompanied the defendant at the time the shooting occurred, creating the clear inference this witness would, by his testimony, show defendant was not on the premises at the time of the shooting. This witness when called supplied no such testimony (T-3.27 -- 3.42; R-1).

 Later defendant's counsel told the court, out of the jury's presence, that he had advised his client not to take the stand. The court then had dialogue with the defendant, during which the defendant stated: "* * * I never in a day of my life killed nobody * * *." (T-3.105; R-1).

 Finally, on summation, defense counsel said: "* * * Yet no one has come here today and said it was in self-defense. And why? Because Mr. Victor did not do it, self-defense or any other way * * *." (T-4.18; R-1); and counsel suggested another, whom he specifically named, might have done the killing. (T-4.31; R-1). Nor is this all. On October 10, 1970, relator wrote to his counsel, in pertinent part, as follows (R-4: Ltr. annexed to Petition for Certification):


* * * I didn't want anything about manslaughter mentioned on the brief simply because I had nothing to do with this crime for which they convicted me, simply because I am black.

 He also wrote to counsel on April 13, 1970, commenting on the brief filed on his behalf in the Appellate Division (R-4: Ltr. annexed to Petition for Certification):


* * * the argument * * * belies my original position which has not changed. I was not there when the crime was committed.

 It was the "original position" which trial counsel set forth at the trial, obviously with the acquiescence, if not at the direction, of the relator.

 It would have been error to submit voluntary manslaughter to the jury. In addition to circumstantial evidence, there was abundant evidence, from eye witnesses to support the jury's verdict. United States ex rel. Dickerson v. Rundle, 430 F.2d 462 (3 Cir. 1970); United States ex rel. Griffin v. Martin, 409 F.2d 1300 (2 Cir. 1969).

 The insubstantial claims based upon Senator Kennedy's assassination, and admission of photographs, implicate nothing more than the trial judge's discretion, and, as such, are likewise rejected. See United States v. Angelo, 153 F.2d 247, 251-252 (3 Cir. 1946), where the court said:


* * * the proper administration of justice requires the vesting of discretion in the trial judge. It would be both impossible and undesirable to delimit strictly the powers of the trial judge and to set detailed regulations for the conduct of every case * * *. On the judge rests the chief responsibility for the result; he is the cornerstone of any effective administration of trial by jury, and we are disposed to give him great leeway.

 See also United States v. Chicarelli et al., 445 F.2d 1111 (3 Cir. 1971).

 Finally, the prosecutor's remarks on summation, as the Magistrate properly points out, drew an immediate rebuke from the court, a cautionary instruction to the jury, and were not made the subject of a motion for mistrial (T-4.51 -- 4.52; R-1). It can hardly be claimed the comment was constitutionally impermissible. In any case, it can be said "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" and does not afford a basis for habeas corpus relief. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

 Because of the issues raised, and the exhibits available to this Court, no evidentiary hearing is required.

 It is on this 23d day of August, 1971, Ordered, that the report and recommendation of the Federal Magistrate be, and hereby is, adopted as the opinion of this Court, together with the Court's supplement, and that the petition of Troy Victor for a writ of habeas corpus, filed in this Court on May 20, 1971, be and hereby is denied; and this Court certifies there is no probable cause for appeal from this Order. United States District Court District of New Jersey Docket No. C. 742-71 United States of America ex rel. Troy Victor, #46716, Civil Action Petitioner (On Petition for Writ of v. Habeas Corpus) Howard D. Yeager, Warden, Report and Recommendation Respondent


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