United States of America Ex Rel. Thaddeus Swiatek, Relator-Appellant v. Hon. Vincent R. Mancusi, Warden, Attica State Prison, Attica, New York

MOORE, Circuit Judge:

This is an appeal from an order dismissing without a hearing the petition of appellant Thaddeus Swiatek (Swia-tek) for a writ of habeas corpus. By order of this court, Swiatek’s motion for a certificate of probable cause, for leave to proceed in forma pauperis and for the assignment of counsel to prosecute this appeal was granted. For the reasons stated below, we hold that in the course of a 1967 New York State court recidivist proceeding, Swiatek waived his Fourteenth Amendment right to test the constitutionality of a 1945 predicate conviction via an adversary hearing…