United States Ex Rel. Roy Bland v. Hon. Albert Nenna, as Warden, Etc.

393 F.2d 416 UNITED STATES ex rel. Roy BLAND, Petitioner-Appellant, v. Hon. Albert NENNA, as Warden, etc., Respondent-Appellee. No. 503, Docket 32251. United States Court of Appeals Second Circuit. Argued April 11, 1968. Decided April 11, 1968, Certiorari Denied June 17, 1968, See 88 S.Ct. 2323. Leon B. Polsky, New York City (Anthony F. Marra, New York City, on the brief), for petitioner-appellant. Robert D. MacLachlan, Jr., Asst. Dist. Atty., New York City (Frank S. Hogan, Dist. Atty., and H. Richard Uviller, Asst. Dist. Atty., New York City, on the brief), for respondent-appellee. Before LUMBARD, Chief Judge, and WATERMAN and KAUFMAN, Circuit Judges. PER CURIAM: [1] We affirm in open court, for the reasons stated in Judge Frankel's opinion, 282 F.Supp. 754 (S.D.N.Y.1968), the denial of the petition for a writ of habeas corpus. We reject the contention made by petitioner, who is awaiting trial in the state court on charges of robbery, grand larceny, assault and possession of a loaded pistol, that he has been placed in double jeopardy in violation of his Fourteenth Amendment due process rights, the state court having declared a mistrial in a prior trial on the same charges after a jury was impaneled, but before the introduction of any evidence, because the state's witnesses were unavailable after a four day continuance. [2] We direct that the mandate issue forthwith.