United States v. Follette

366 F.2d 775

UNITED STATES of America ex rel. Domingo COLON, Relator-Appellant, v. Hon. Harold W. FOLLETTE (Successor to Hon. Edward M. Fay), Warden, Green Haven Prison, Stormville, New York, Respondent-Appellee.

No. 44, Docket 29459.

United States Court of Appeals Second Circuit.

Argued Sept. 26, 1966. Decided Sept. 29, 1966.

Lewis S. Sandler, New York City (Mendes & Mount, New York City, on the brief), for appellant.

Brenda Soloff, Asst. Atty. Gen. of New York (Louis J. Lefkowitz, Atty Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.

Before MOORE, FRIENDLY and KAUFMAN, Circuit Judges.

PER CURIAM:

1

This is an appeal from an order of the United States District Court for the Southern District of New York, John M. Cannella, Judge, dated December 17, 1964, denying a petition for a writ of habeas corpus.

2

Appellant was convicted after a jury trial in the former Court of General Sessions of New York County of two counts of feloniously selling a narcotic drug and was subsequently, on December 11, 1961, sentenced to consecutive terms of from 7 1/2 to 10 years in prison. The Appellate Division modified to the extent of ordering that the sentences be concurrent. People v. Colon, 20 A.D.2d 854 , 248 N.Y.S.2d 169 (1st Dept. 1964), and leave to appeal to the Court of Appeals was denied.

3

Appellant's claim below that he was denied a fair trial due to the excessive participation of the trial judge and certain remarks of the prosecutor on summation is identical with his claim presented on direct appeal to the Appellate Division. We hold that the alleged wrongful conduct complained of falls short of raising a constitutional question. See United States ex rel. Castillo v. Fay, 350 F.2d 400 (2d Cir. 1965), cert. denied, 382 U.S. 1019 , 86 S.Ct. 637 , 15 L.Ed.2d 533 (1966).

4

Affirmed.