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UNITED STATES EX REL. FRIZER v. McMANN

No. 473, Docket 34039.

437 F.2d 1309 (1970)

UNITED STATES ex rel. Calvin FRIZER, Relator-Appellant, v. Daniel McMANN, Warden of Auburn Prison, Auburn, New York, Respondent-Appellee.

United States Court of Appeals Second Circuit.

Decided January 27, 1970.

Submitted on Rehearing February 10, 1970.

Decided April 1, 1970.

Attorney(s) appearing for the Case

Guy Miller Struve, New York City, for relator-appellant.

John G. Proudfit, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City, and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.

Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and MANSFIELD, District Judge.

Submitted on Rehearing in Banc February 10, 1970.

PER CURIAM:

Calvin Frizer was convicted in the County Court of Nassau County, N. Y., after trial by jury, of burglary in the second degree and attempted grand larceny in the second degree. On appeal he claimed that his conviction had been obtained in violation of the Federal Constitution because of an impermissibly suggestive identification, see Stovall v. Denno,...

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