Opinion
No. 68 Civ. 922.
May 7, 1968.
Raymond Candelaria, pro se.
Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City, for respondent; John G. Proudfit, Asst. Atty. Gen., of counsel.
OPINION
Petitioner is presently confined to Attica State Prison, Attica, New York, pursuant to a judgment of conviction entered after a trial by jury for violation of narcotics laws. His conviction was affirmed by the Appellate Division, and leave to appeal to the Court of Appeals was denied. He seeks his release upon a federal writ of habeas corpus, alleging that his federal constitutional rights were violated. The charges are (1) that the testimony of certain state witnesses at his trial was false; (2) that he was denied an opportunity to consult with counsel at the time of his arrest; and (3) that there was delay in his arraignment.
People v. Candelaria, 27 A.D.2d 903, 280 N.Y.S.2d 539 (1st Dep't 1967).
In November 1967 the petitioner, upon the same allegations as here presented, applied to this court for a writ of habeas corpus, which was denied by Judge McGohey for failure of petitioner to exhaust available state remedies. Thereafter petitioner instituted a coram nobis proceeding in the Supreme Court, New York County, which was denied in December 1967. No appeal was taken from the denial of the petition for writ of error coram nobis.
The failure of petitioner to appeal from the denial of his petition for writ of error coram nobis alone requires denial of the instant application, since he has failed to exhaust available state remedies. Denial also is required upon the merits. The contention with respect to allegedly false testimony presented an issue of the credibility of witnesses, the resolution of which was by the jury. Since there was evidence to support the charge, the jury verdict based thereon presents no constitutional issue.
United States ex rel. Jiggetts v. Follette, 260 F. Supp. 301 (S.D.N.Y. 1966).
United States v. Kelly, 349 F.2d 720, 780 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966); United States v. Reina, 242 F.2d 302, 307 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957).
United States ex rel. Morton v. Mancusi, 393 F.2d 482 (2d Cir. 1968).
Next, as to the claim that he was denied an opportunity to consult with counsel at the time of arrest, Escobedo is inapplicable, since there was no confession or statement resulting therefrom. Moreover, the facts in the instant case are far removed from Escobedo.
Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).
Finally, the delay in arraignment presents no constitutional issue. No statement by the defendant resulted therefrom. Moreover, the issue was not raised either before or during the trial.
United States v. Indiviglio, 352 F.2d 276, 279-80 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). See United States v. Del Llano, 354 F.2d 844 (2d Cir. 1965); United States ex rel. Forella v. Follette, 269 F. Supp. 627 (S.D.N.Y. 1967). See also United States ex rel. Boone v. Fay, 231 F. Supp. 387 (S.D.N Y 1964).
The petition is dismissed.