421 F2d 1392 United States Green v. W Follette

421 F.2d 1392

UNITED STATES of America ex rel. Leslie Direl GREEN, Petitioner-Appellant,
Harold W. FOLLETTE, as Warden of Green Haven State Prison, Stormville, New York, Respondent-Appellee.

No. 406.

Docket 33893.

United States Court of Appeals, Second Circuit.

Argued January 12, 1970.

Decided February 20, 1970.

Ira I. Van Leer, New York City, for petitioner-appellant.

Amy Juviler, Asst. Atty. Gen., New York City (Samuel A. Hirshowitz, First Asst. Atty. Gen., and Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City on the brief), for respondent-appellee.

Before MEDINA, WATERMAN and SMITH, Circuit Judges.


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We affirm by applying the principles set forth in United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969). There is nothing in the "totality of circumstances surrounding" the identification to justify a finding that there was any "likelihood of irreparable misidentification." Id., 406 F.2d at 220; see Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967); accord, Simmons v. United States, 390 U.S. 377, 383, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Since the judgment of conviction was entered on January 21, 1959, the case is governed by the holding of the Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967 (1967). There was no violation of relator's constitutional right to due process.