United States of America Ex Rel. Leroy Vanderhorst, Relator-Appellee v. Hon. J. Edwin Lavallee, as Warden of Auburn State Prison, Auburn, New York

(with whom MOORE, FRIENDLY and HAYS, Circuit Judges, concur), dissenting:

I dissent.

LeRoy Vanderhorst was convicted of murder in the second degree for killing one Harold Johnson on the night of April 15, 1964. There is no basis for setting aside'this conviction returned by a Bronx County jury after proper rulings by the state judge before trial and during the trial which held that Vanderhorst’s in-custody statements and confession were voluntary.

Vanderhorst’s petition sets out no facts which were not before the state court. But he does make a constitutional argument which was not made during…