Opinion · Court of Appeals for the Second Circuit
United States Ex Rel. Melville R. Anderson, Relator-Appellant v. Edward M. Fay, Warden, Green Haven Prison, Stormville, New York
394 F.2d 109
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1968-04-29
- Topic
- general
PER CURIAM: Melville R. Anderson, an inmate of Green Haven Prison, Stormville, New York, appeals from an order of the United States District Court for the Southern District of New York, Cashin, J., dismissing on the merits his application for a writ of habeas corpus following a hearing. On March 26, 1962, after a jury trial in state court, Anderson was found guilty of kidnapping and robbery in the first degree and is currently serving concurrent sentences of from 20 years to life for the former offense and from 10 to 20 years for the latter. Both convictions resulted from the same series of events, Anderson’s participation in the robbery and detention of the principal witness against him, a Mrs. Evelyn Davis.
Citator
UpLaw has not yet analyzed United States Ex Rel. Melville R. Anderson, Relator-Appellant v. Edward M. Fay, Warden, Green Haven Prison, Stormville, New York. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 8 opinions
UNITED STATES v. FAY,394 F.2d 109(2nd Cir. 1968)
UNITED STATES ex rel. Melville R. ANDERSON, Relator-Appellant, v. Edward
M. FAY, Warden, Green Haven Prison, Stormville, New York,
Respondent-Appellee.
No. 404, Docket 31920.
United States Court of Appeals, Second Circuit.
Submitted April 11, 1968.
Decided April 29, 1968.
Michael Jaffe, New York City, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), filed a brief for respondent-appellee.
Before LUMBARD, Chief Judge, and WATERMAN and KAUFMAN, Circuit Judges.
In the court below, Anderson claimed that the prosecution suppressed evidence favorable to him and that hisPage 110trial counsel was incompetent. Both of these contentions have been abandoned and the main thrust of Anderson's argument on appeal is that the testimony of Mrs. Davis was so incredible as to be "no evidence" within the meaning of Thompson v. City of Louisville,362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). We find, as did the District Court, that there was substantial competent evidence to support the conviction. Mrs. Davis testified that upon leaving the Brevoort Savings Bank in Brooklyn she was accosted by Anderson and another man, forced to return to her home and then to withdraw money from her bank account and was not released until later in the afternoon.1In addition, she identified Anderson both at a police station and during the course of the trial.2Any discrepancies in Mrs. Davis' testimony reflected on her credibility and were for the jury to resolve. United States v. Dehar,388 F.2d 430(2d Cir. 1968); United States v. Countryman,311 F.2d 189(2d Cir. 1962).
Anderson also claims that he was denied the right to represent himself at the proceedings below and that the hearing was deficient because the state trial transcript was not before the District Court. See Townsend v. Sain,372 U.S. 293, 319, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Neither point has merit. Anderson never made an unequivocal request to act as his own attorney, United States ex rel. Maldonado v. Denno,348 F.2d 12(2d Cir. 1965), cert. denied,384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), no significant reason was presented to require postponement of the hearing, and Judge Cashin's opinion makes abundantly clear that he examined the state trial transcript.
Affirmed.
- Under recent New York decisions, the relatively short period of detention incident to the robbery would not normally be punishable as kidnapping. See People v. Lombardi,20 N.Y.2d 266,282 N.Y.S.2d 519,229 N.E.2d 206(1967); People v. Levy,15 N.Y.2d 159,256 N.Y.S.2d 793,204 N.E.2d 842(1965).Levyhas not, however, been applied retroactively and under New York practice would not appear to affect Anderson's conviction. See People v. Pelio,24 A.D.2d 500, 261 N.Y.S.2d 433 (2d Dept. 1965). ↩
- Anderson did not testify at the trial. ↩