413 F2d 301 United States Griffin v. McMann

413 F.2d 301

UNITED STATES of America ex rel. John GRIFFIN, Petitioner-Appellee,
Daniel McMANN, Warden, Auburn State Prison, Auburn, New
York, Respondent-Appellant.

No. 725, Docket 33720.

United States Court of Appeals Second Circuit.

Argued June 25, 1969.
Decided July 23, 1969.

Mortimer Sattler, Asst. Atty. Gen. of State of New York (Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Arlene Silverman, Deputy Asst. Atty. Gen., of counsel), for appellant.

Jerald Rosenthal, New York City, for appellee.

Before HAYS and FEINBERG, Circuit Judges, and JAMESON, District judge.1


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Respondent, the warden of Auburn State Prison, appeals from an order of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, granting the application of petitioner, John Griffin, for a writ of habeas corpus.


Petitioner applied for the writ on the ground that his 1959 plea of guilty to robbery in the second degree was coerced. The district court properly ordered a hearing to test the validity of his allegations. At the hearing oral evidence as to coercion was presented. Crediting this evidence, the court found that the plea had been coerced and granted the writ. Determination of the credibility of this evidence was within the power of the trier of the facts. We cannot say that his conclusion was 'clearly erroneous'; therefore we must affirm. Rule 52(a), Federal Rules of Civil Procedure.




Of the District of Montana, sitting by designation