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UNITED STATES EX REL. RUSH v. ZIEGELE

October 26, 1971

UNITED STATES of America ex rel. Gary G. RUSH, Petitioner,
v.
Edward C. ZIEGELE, Superintendent, Leesburg, New Jersey State Prison, Respondent


Cohen, District Judge.


The opinion of the court was delivered by: COHEN

COHEN, District Judge:

 Petitioner, Gary G. Rush, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., challenging the legality of his detention in the New Jersey State Prison at Leesburg, where he is confined to life imprisonment, upon conviction of a felony-murder.

 Petitioner's state court remedies on direct appeal have been exhausted, State v. Ordog and Rush, 45 N.J. 347, 212 A. 2d 370 (1965), cert. den. 384 U.S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025 (1966).

 For the most part, the grounds urged here by the petitioner are substantially those raised in the New Jersey Supreme Court and there found to be without merit:

 
1. Petitioner's self-inculpatory statements are unbelievable, involuntary and inadmissible in evidence as a matter of law;
 
2. His admissions to psychiatrists are subject to the same tests for admissibility as any other inculpatory statement and, hence, they also were not admissible;
 
3. A severance should have been granted since the introduction in evidence of his codefendant's extrajudicial statement deprived him of a fair trial;
 
4. The prosecutor's various remarks were inflammatory and not cured by the trial judge's instructions to the jury; and
 
5. That there was no reliable evidence of petitioner's guilt.

 While the severance issue and that of his admissions to psychiatrists were not directly asserted on appeal, the New Jersey Supreme Court very carefully reviewed the record and found no clear error on any grounds and affirmed his conviction. Certiorari having been denied by the United States Supreme Court, it would appear futile for petitioner to pursue post-conviction relief. Under these circumstances, petitioner has sufficiently exhausted his state remedies. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); United States ex rel. Boyance v. Myers, 372 F.2d 111 (3 Cir. 1967). In re Thompson's Petition, 301 F.2d 659 (3 Cir. 1962); and In re Ernst's Pet., 294 F.2d 556 (3 Cir. 1961).

 Careful and independent examination of the State Court record, as required by Townsend v. Sain, 372 U.S. 293, 316, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), has been made here, as was also done on a prior occasion with respect to the petition for a writ of habeas corpus by petitioner's codefendant, Anthony F. Ordog, Jr. See this court's opinion reported in United States ex rel. Ordog v. Yeager, 299 F. Supp. 321 (D.N.J. 1969). As set forth therein, petitioner Rush, his codefendants, Ordog and Russell Rush, his brother, were indicted for the crime of felony-murder. Initially, all three pleaded not guilty. Thereafter, each changed his plea to non vult. Subsequently, petitioner and Ordog retracted their pleas and reentered pleas of not guilty; Russell Rush's plea of non vult remained and he was sentenced to life imprisonment.

 At trial, the State contended that, on January 18, 1962, during the perpetration of an armed robbery of a tavern in Camden County, Russell Rush, armed with a shotgun, and petitioner, armed with a claw hammer, terrorized the patrons of the tavern in the course of the robbery; relieved a customer and one of the proprietors of their wallets; emptied the cash register of its contents; and, when Mary Tilton, co-owner of the tavern, who was behind the bar at the time, denied having any more money, she was shot at close range and killed by Russell Rush. Ordog was alleged to have been the driver of the "getaway" car waiting outside of the tavern. The State did not seek the death penalty and upon conviction both petitioner and Ordog were sentenced to life imprisonment.

 The severance question and the challenged psychiatric testimony were raised by Ordog in his petition, and, for the reasons stated in this Court's opinion, supra, led to a different ...


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