Hugh R. Conway, Appellant, v. United States of America, 470 F.2d 989 (3d Cir. 1972)

The appellant was convicted of robbing the Carteret Bank and Trust Company, a member of the Federal Reserve System, the deposits of which were insured by FDIC, in violation of 18 U.S.C. § 2113(a) and (d), and his conviction was affirmed by this court in United States v. Conway, 415 F.2d 158 (1969). He brought this action pursuant to 28 U.S.C. § 2255 on the ground that his counsel was not present when the FBI displayed his photograph to bank employees after he was in custody but before he was indicted. This point was decided adversely to him in Conway, supra at 162. In United States v. Zeiler, 3 Cir., 427 F.2d 1305 (1970), we held that a defendant was entitled to have counsel present at a pre-trial photographic identification conducted while he was incarcerated. In United States v. Higgins, 3 Cir., 458 F.2d 461, 464 (1972), we held the rule in Zeiler was to be applied prospectively from June 5, 1970. Conway was indicted long before this date and his appeal was decided August 18, 1969. Moreover, in United States ex rel. Reed v. Anderson, 3 Cir., 461 F.2d 739, 745 (1972), we overruled "that portion of Zeiler which denominated a pretrial photograph identification as a critical stage requiring the presence of counsel to satisfy the Sixth Amendment."

It follows that Conway's application is clearly without merit. The judgment of the district court will be affirmed.