Sylvester Mark Holley v. Howard D. Yeager, Warden of the New Jersey State Prison

PER CURIAM.

This is an appeal from the judgment of the District Court allowing a writ of habeas corpus to a state prisoner who had been convicted of murder on April 8,1960. The trial judge, as he was bound to do, granted the writ on the authority of United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (3 Cir. 1965) which applied the rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) retroactively. The United States Supreme Court in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (June 20, 1966) has now held “that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision.” (86 S.Ct., p. 1775). The Supreme Court on the same day (June 20, 1966), allowed certiorari in New Jersey et al. v. Russo et al., 86 S.Ct. 1914, vacated the judgment and remanded the case to the District Court “for further proceedings in the light of Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed.2d 882].”

The alleged retroactive effect of Russo was the only point of substance on this appeal. The judgment of the District Court will be reversed and the cause remanded to that Court with direction to enter judgment denying the application for writ of habeas corpus.

We commend assigned counsel for ap-pellee on this appeal for his thorough, competent representation of appellee.