United States Ex Rel. Burton Graham, Relator-Appellant v. Vincent R. Mancusi, Warden, Attica State Prison, and the State of New York

FRIENDLY, Chief Judge:

This appeal from the denial of a New York state prisoner’s application for ha-beas corpus by the District Court for the Western District of New York raises the issue whether an appeallate court, having determined that highly material evidence was erroneously received and that relator’s conviction for a more serious offense must therefore be reversed, can constitutionally render a judgment of conviction and impose sentence for a lesser offense for which the untainted evidence would have sufficed. Relator contends that the procedure which New York has here followed has…