United States ex rel. Cuthbert Eastman v. Hon. Edward M. Fay

333 F.2d 28

UNITED STATES of America ex rel. Cuthbert EASTMAN, Relator-Appellee, v. Hon. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, andthe People of the State of New York, Respondents-Appellants.

No. 363, Docket 28612.

United States Court of Appeals Second Circuit.

Argued March 17, 1964. Decided June 15, 1964.

Leon B. Polsky, New York City (Anthony F. Marra, New York City, on the brief), for relator-appellee.

Ronald J. Offenkrantz, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and Irving Galt, Asst. Solicitor .general, on the brief), for respondents-appellants.

Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.

PER CURIAM.

1

Relator seeks habeas corpus claiming that his confinement under a state court conviction violates the fourth amendment because of an illegal search and seizure. The alleged search and seizure occurred on or about February 25, 1956. Relator's conviction became final on July 23, 1956, when his appeal from the judgment of conviction was dismissed for lack of prosecution. In granting the writ, Judge Tyler held that relator was entitled to relief under Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), even though relator's conviction became final prior to that decision and prior to the search and seizure that was the subject of the Mapp case. 1 This court sitting en banc in United States ex rel. Angelet v. Fay, 1964, 333 F.2d 12 , held that Mapp is not to be given such retroactive effect. Accordingly the order must be reversed with directions to deny the writ.

2

Order reversed.

1

Miss Mapp's apartment was searched unlawfully on May 23, 1957, 367 U.S. at 644 , 81 S.Ct. 1684