Allen Johnson v. Joseph Brierley , 424 F.2d 552 ( 1970 )

424 F.2d 552

Allen JOHNSON, Appellant,
v.
Joseph BRIERLEY.

No. 18369.

United States Court of Appeals, Third Circuit.

Submitted April 3, 1970.
Decided April 27, 1970.

Allen Johnson, pro se.

Robert L. Campbell, Asst. Dist. Atty., Pittsburgh, Pa. (Robert W. Duggan, Dist. Atty. of Allegheny County, Carol Mary Los, Asst. Dist. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before HASTIE, Chief Judge, and MARIS and ADAMS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

1

The relator has appealed from an order of the district court denying, without an evidentiary hearing, his petition for a writ of habeas corpus which attacked his conviction in 1962 in the criminal court of Allegheny County, Pennsylvania, of murder in the first degree. His contentions in this court are that the state court admitted a confession at his trial without evidence or finding of waiver of objection or any independent inquiry into its voluntariness.

2

In the opinion of the district court denying the relator's petition Judge Gourley stated:

3

'With regard to petitioner's contention that his confession was improperly admitted into evidence, petitioner was represented by counsel at his trial, and counsel specifically stated on the record that he did not object to its admission into evidence. Accordingly, the trial court only had the duty to make an independent determination on the voluntariness and admissibility of the confession in the event that sufficient facts of record existed as to alert the trial court to the possibility that the confession may not have been voluntary. Jackson v. Denno, 379 U.S. 368, 374, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963).

4

'The trial record does not evidence facts which would have alerted the trial judge to a question as to the voluntariness of the confession.'

5

A petition making, inter alia, a somewhat similar attack upon the admission of the confession had previously been filed by the relator in the Court of Common Pleas of Allegheny County, Pennsylvania, under the Pennsylvania Post Conviction Hearing Act and had been denied by the court on its merits, its denial being subsequently affirmed by the Supreme Court of Pennsylvania. Commonwealth v. Johnson, 1969, 433 Pa. 582, 252 A.2d 641.

6

Our examination of the record satisfies us that the district court did not err in denying the relator's petition.

7

The order of the district court will be affirmed.