November 18, 1969, As Amended. Rehearing Denied December 31, 1969.
Cummings and Kerner, Circuit Judges, and Wise, District Judge.
This is an appeal from an order of the District Court denying appellant's application for a writ of habeas corpus. The District Court granted appellant a certificate of probable cause to appeal in forma pauperis.
Appellant alleges that his 1953 conviction for burglary and 1963 conviction for aggravated kidnapping and armed robbery were a violation of the United States Constitution. The convictions were affirmed by the Illinois Supreme Court in People v. Anderson, 17 Ill.2d 422, 161 N.E.2d 835 (1959)*fn1 and People v. Long, 39 Ill.2d 40, 233 N.E.2d 389, (1968).
In support of his application for a writ of habeas corpus appellant presents the following questions for determination with regard to his 1953 conviction:
1. Whether comments made by appellant to a policeman while traveling on a train from New Mexico to Chicago constituted a post-indictment confession;
2. Whether Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964) is retroactive and applicable to the facts of this case;
3. Whether the admission of a co-defendant's redacted confession deprived the appellant of a fair trial;
4. Whether evidence that the appellant resisted arrest was properly considered by the trial judge in fixing sentence; and
5. Whether the Illinois Supreme Court improperly refused to consider appellant's petition for a reduction in sentence.
After fleeing the jurisdiction appellant was located in New Mexico and in November, 1952 officer Ferguson was dispatched to return him to Chicago for trial. The return trip consisted of a 24 hour train ride, during which appellant and the officer engaged in conversation. Appellant contends he was interrogated by the officer, that he was permitted less than five hours sleep at intermittent intervals and was informed he would be given a Fifth District Lie Detector Test, which both knew to mean a physical beating. ...