Ganey, Smith and Freedman, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
The appellant, represented by able and experienced counsel of his own choice, was tried by a jury and convicted of murder allegedly committed in the perpetration of an armed robbery in Paterson, New Jersey. He was thereupon sentenced to a term of life imprisonment. On appeal to the Supreme Court of New Jersey the judgment of conviction was affirmed, State v. Wade, 40 N.J. 27, 190 A.2d 657 (May 1963), and certiorari was denied 375 U.S. 846, 84 S. Ct. 100, 11 L. Ed. 2d 73. The appellant then filed a petition for habeas corpus which the District Court dismissed without a hearing. Thereafter he sought relief in a collateral proceeding initiated in the Superior Court of New Jersey under R.R. 3:10A. Relief was denied and an appeal from this denial was dismissed as without merit.
The appellant filed a second petition for habeas corpus which was dismissed without a hearing after the District Court had reviewed and considered the transcript of the trial proceedings consisting of approximately 5000 pages. Wade v. Yeager, 245 F. Supp. 67 (D.C.1965). The present appeal is from the dismissal of this petition. Although there was no appeal from the dismissal of the first petition*fn1 the action of the court thereon is relevant on this appeal and must be considered.
The appellant challenges the constitutional validity of his conviction on several grounds, only three of which warrant discussion. However, his broad argument here is that he was entitled to an evidentiary hearing on each of the issues raised in his petition and that the denial thereof was error.
After the robbery, which occurred on the morning of March 3, 1960, the appellant and an accomplice fled the scene in an automobile, a description of which was broadcast by the local police. Later in the morning as they approached the entrance to the George Washington Bridge members of the Port Authority Police recognized the vehicle as the one described in the broadcast. An effort to intercept the automobile failed and it sped across the bridge with the police in pursuit. In the chase the automobile crashed into an abutment and the appellant and his accomplice then fled on foot. While fleeing from the police the appellant sustained multiple fractures of his right leg when he leaped over a wall on the New York side of the bridge complex. He was apprehended and thereafter hospitalized until March 22, when, after waiving extradition, he was surrendered to the police of Paterson. When discharged from the hospital he was ambulatory and on crutches.
VOLUNTARINESS OF CONFESSION
Admittedly the appellant's conviction rested, at least in part, on a signed statement given several hours after his surrender to the Paterson police and after he had been afforded the opportunity to speak to members of his family and consult with his attorney. The appellant now challenges the validity of his conviction, as he did in the lower court, on the ground that the statement was involuntarily made while he was under the influence of "truth serum." There is no contention here that he was in any way mistreated.
It appears from the uncontradicted evidence in the trial record that after his surrender to the Paterson police the appellant complained of pain in his leg. A physician summoned by the police gave him an intramuscular injection of 100 mgs. of Demerol, a proprietary analgesic, spasmolytic and sedative drug. The dose was well within the average range for an adult. The interrogation which resulted in the statement began a little more than an hour later and was concluded in two hours. There is testimony in the trial transcript, contradicted only by the appellant, that throughout the interrogation he appeared to be in good condition, coherent and responsive. A more complete summary is contained in the opinion of the Supreme Court of New Jersey, supra.
When the statement was offered in evidence during the course of the trial, counsel for the appellant objected to its admission on the ground that it was involuntarily made while the appellant was under the influence of "Demerol." This objection placed the burden on the State to prove affirmatively that the appellant's "will had not been overborne and that the fundamental fairness requirement of the due process clause had not been violated." State v. Tassiello, 39 N.J. 282, 188 A.2d 406, 411 (1963). It placed on the trial judge the responsibility to conduct a preliminary hearing on the issue raised by the objection. Ibid. This procedure was followed with meticulous care in this case.
After a full and fair hearing, during which testimony was taken and the arguments of counsel were considered, the trial judge resolved the disputed issue in favor of the State and held that the statement was admissible. Notwithstanding this holding he submitted the issue of voluntariness to the jury, as he was required to do under the circumstances of the case. State v. Tassiello, supra. The procedure followed was fully in accord with the criteria enunciated by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 377-391, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) and is plainly not open to criticism on this appeal.
The appellant alleged in his first petition for habeas corpus that the statement was made while he was under the influence of Demerol; he made no reference to the use of "truth serum." After a review of the trial record and a consideration of the opinion of the Supreme Court of New Jersey, the District Court dismissed the petition without an evidentiary hearing and we think properly so. Townsend v. Sain, 372 U.S. 293, 312-316, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). It appears from our examination of the entire record that the factual issues relating to the claim that the statement was involuntary were resolved in the State court proceedings after a full and fair hearing which resulted in reliable findings amply supported by the evidence. The appellant was not entitled to another plenary hearing on the same issues. Townsend v. Sain, supra;*fn2 Brown v. Allen, 344 U.S. 443, 463, 73 S. Ct. 397, 97 L. Ed. 469 (1953).
The dismissal of the first petition was not to deter the appellant. He filed a second petition which differed from the first in that he alleged, among other things, that his statement was involuntarily made while he was under the influence of "truth serum." This allegation, unsupported by any statement of fact, was seemingly an afterthought suggested by the facts in either Jackson v. Denno or Townsend v. Sain, both supra. At no time was it contended, either during the trial or on appeal, that the medication administered to the appellant before his interrogation contained scopolamine or any other drug having the properties of "truth serum." There is nothing in the trial record to support the contention and the appellant does not allege that he is in possession of newly discovered evidence. We have here nothing more than an apparent attempt to relitigate an ...