United States of America Ex Rel. John O. Hunter v. Hon. Harold W. Follette, Warden of Green Haven Prison, Stormville, New York

420 F.2d 779, 1969 U.S. App. LEXIS 9999

• Court: Court of Appeals for the Second Circuit
• Decided: November 18, 1969
• Docket: 33606
• Status: Published

Opinion

420 F.2d 779

UNITED STATES of America ex rel. John O. HUNTER, Petitioner-Appellant,
v.
Hon. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.

No. 306.

Docket 33606.

United States Court of Appeals Second Circuit.

Argued November 18, 1969.

Decided November 18, 1969.

Alan D. Oshrin, Braun, Pachman, Freidel & Oshrin, Commack, N. Y., for petitioner-appellant.

Brenda Soloff, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., State of New York, on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, DANAHER* and ANDERSON, Circuit Judges.

PER CURIAM:

We affirm in open court the judgment of the District Court which denied without a hearing John O. Hunter's petition for a writ of habeas corpus. Hunter, who is imprisoned after conviction of first degree manslaughter, claims: (1) that he was deprived of a fair trial when the prosecutor informed the jury in his opening statement that Hunter had previously been convicted of a felony similar to the count in the indictment relating to use of a dangerous weapon, former N.Y.Penal Law, Consol. Laws, c. 40, § 1897(1); (2) that he was prejudiced by the State's failure to provide him with a free copy of the trial transcript although one was available to retained counsel who represented Hunter on his appeal in the State court; and (3) that the state trial court stenographer's failure to transcribe the opening and closing statements at the trial denied him due process of law. For the reasons stated in the opinion of Judge Frankel, 307 F.Supp. 1023 (S.D.N.Y.1969), we hold that the petition was properly denied.

Notes:

* John A. Danaher, Senior Circuit Judge of the District of Columbia Circuit, sitting by designation