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UNITED STATES v. FAY

No. 204, Docket 25395.

267 F.2d 507 (1959)

UNITED STATES of America ex rel. Joseph MARCIAL, a/k/a Joseph Johnson, Petitioner-Appellee. v. Edward M. FAY, Warden, Green Haven Prison and The People of the State of New York, Respondents-Appellants.

United States Court of Appeals Second Circuit.

Decided January 23, 1959.

Attorney(s) appearing for the Case

George K. Bernstein, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, Asst. Solicitor General, New York City, and Michael Freyberg, Asst. Atty. Gen. of the State of New York, on the brief), for respondents-appellants.

Arthur B. Kramer, of Franken, Kramer & Bam, New York City, for petitioner-appellee.

Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.

HINCKS, Circuit Judge.

Joseph Marcial, the petitioner, was convicted in 1934, on a charge of robbery in the second degree in the state courts of New York. Again in 1949 he was convicted of robbery and was sentenced, as a second felony offender, to a term of ten to thirty years. McKinney's Consol.Laws, New York Penal Law, c. 40, § 1941. Alleging that his first conviction was without due process of law, Marcial sought a writ of habeas corpus, in a petition...

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