Duffy, Senior Circuit Judge, and Cummings and Hamley,*fn* Circuit Judges.
DUFFY, Senior Circuit Judge.
One Lindford Marshall was shot by a gunman during an armed robbery of his grocery store in South Beloit, Illinois, on April 3, 1967.
Petitioner and a co-defendant, Ophem Falconer, were arrested for the crime the following morning after a raid on their motel room in Rockford, Illinois, by sheriff's police.
The murder weapon (a pistol), several hundred dollars in cash and a revolver owned by Marshall were found in or around the Rockford motel room which had been occupied by defendants.
There was and is no claim that petitioner herein used a gun or any kind of weapon during the robbery.
The chain of events leading to the custodial confrontation which produced the murder gun, began with the arrest of petitioner and his co-defendant by the sheriff's police on April 4, 1967, in the early morning hours. After having been advised of his constitutional rights by the officers who had taken petitioner into custody, he was asked by the officers to waive these rights. However, petitioner remained mute, refusing to divulge his name or age. Petitioner then was booked and incarcerated.*fn1
About one hour later, another pair of police officers advised petitioner of his rights. Petitioner again indicated that he would make no statement.
After Doss had been placed in a cell at the Winnebago County jail, co-defendant Falconer confessed and apparently suggested that petitioner Doss had hidden the gun.
Petitioner was then taken to one Captain Iasparro's office where various police officers were present with Falconer. Falconer told petitioner that he had confessed and asked petitioner to show the police officers where the gun was hidden. A short time thereafter, petitioner did indicate the location of the buried gun and currency.*fn2 He then led the police to the location where the gun was buried near the motel where he and Falconer had been apprehended, and subsequently the gun was entered into evidence.
Falconer did not testify at the motion to suppress as to what, if anything, he and the police had agreed upon before Falconer confronted Doss.
In the State Court, a single attorney was appointed to represent both Doss and Falconer. The trial court denied a motion for severance. Petitioner filed a pretrial motion to suppress the murder weapon, claiming it was discovered through a violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The trial court denied this motion. The weapon was admitted into evidence along with proof of petitioner's conduct leading the officers to the weapon and statements made by petitioner during this time.
A jury found both defendants guilty. The Illinois Supreme Court affirmed the conviction but did enter an order that each defendant be re-sentenced because of an error in the manner in which the jury had been qualified for the death sentence. People v. Doss, 44 Ill.2d 541, 256 N.E.2d 753 (1970). The original trial judge imposed sentence on each defendant of not less than 75 years nor more than 100 years in the Illinois State Penitentiary, which sentence petitioner is now serving.
Petitioner Doss proceeded in forma pauperis and petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d) which petition was denied by the District Court. In the petition, Doss alleged that the state trial record demonstrated a Miranda violation, and relief should be granted for this reason. In the alternative, he argued that he was entitled to an evidentiary hearing in federal court with respect to deficiencies in state court proceedings. The District Court denied the habeas ...