United States of America Ex Rel. Robert Samuel White, Petitioner-appellant, v. Hon. Edward M. Fay, As Warden of Greenhaven State Prison, Stormville, New York, Respondent-appellee, 349 F.2d 413 (2d Cir. 1965)

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US Court of Appeals for the Second Circuit - 349 F.2d 413 (2d Cir. 1965) Submitted July 26, 1965
Decided August 4, 1965

Anthony F. Marra and Leon B. Polsky, New York City, on the brief for petitioner-appellant.

Louis J. Lefkowitz, Atty. Gen., State of New York, and Frederick E. Weeks, Jr., Asst. Atty. Gen., on the brief for respondent-appellee.

Before LUMBARD, Chief Judge, and HAYS and ANDERSON, Circuit Judges.


Robert Samuel White attacks by his petition for a writ of habeas corpus his 1945 New York conviction for robbery in the second degree imposed after a plea of guilty to one count of a six count indictment and used as the basis for sentencing White on a subsequent robbery conviction to his current 5 to 10 year sentence as a second felony offender. He sought a writ of error coram nobis in the state courts and, after exhausting his remedies there, petitioned for habeas corpus in the United States District Court for the Southern District of New York where Judge Cannella denied his petition without a hearing, but granted a certificate of probable cause (28 U.S.C. § 2253) and assigned counsel.

White's sole contention, advanced in conclusory terms, is that the count to which he pleaded guilty, being then represented by counsel, and two other related counts were not found by the Grand Jury but were typed on the indictment by some member of the District Attorney's Office.

The record is barren of any suggestion of a factual basis for White's claim. Consequently the district court properly denied the petition without holding a hearing. United States ex rel. Marinaccio v. Fay, 336 F.2d 272 (2 Cir. 1964); United States ex rel. Homchak v. People, 323 F.2d 449 (2 Cir. 1963), cert. denied, 376 U.S. 919, 84 S. Ct. 677, 11 L. Ed. 2d 615 (1964); United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 (2 Cir. 1963).