Staley, Chief Judge, and Maris and Van Dusen, Circuit Judges.
This case is before the court on appellant's appeal from the denial of his second writ of habeas corpus filed with the District Court after his 1959 sentence to a term of 25 to 30 years, following the jury's return of a verdict of guilty of second degree murder. The background facts are summarized in the District Court opinion as follows:
"The facts pertinent to this application are that on September 28, 1956, an indictment charging petitioner with first-degree murder was returned. Petitioner went to trial and on December 10, 1956, a jury found him guilty of first-degree murder with a recommendation of life imprisonment. On appeal the judgment of conviction was reversed for error in the charge. State v. Wolak, 26 N.J. 464, 140 A.2d 385 (1958). A new trial was commenced and the state again sought the death penalty. The second trial resulted in a mistrial and a third trial was started, -- the state still seeking the death penalty. This trial resulted in a conviction of second-degree murder and the imposition of his present sentence of 25 to 30 years. Petitioner appealed the conviction to the New Jersey Supreme Court, alleging that the mistrial was improperly granted and hence he was placed in double jeopardy. His conviction was affirmed. State v. Wolak, 33 N.J. 399, 165 A.2d 174 (1960), cert. denied, 365 U.S. 822 [81 S. Ct. 710, 5 L. Ed. 2d 701] (1961). Petitioner then filed an application for a writ of habeas corpus in this court alleging double jeopardy. A Memorandum and Order denying relief was filed on March 8, 1962. In the Matter of Wolak, Civil No. 1013-61 (D.N.J.) (Lane, J.)."
Relying on decisions holding that a defendant found guilty of second-degree murder*fn1 or first-degree murder with recommendation of life imprisonment*fn2 cannot be convicted of a higher degree of crime or be sentenced to death after a second trial, appellant contends that it was reversible error to subject him to a trial in 1959 on a charge of first-degree murder involving the possibility of the death penalty, in view of the verdict that he was guilty of first-degree murder with recommendation of life imprisonment at his first trial. We agree with the conclusion of the District Court, stated as follows, that any claim of prejudice was purely speculative and that the prosecution of defendant for first-degree murder was, beyond a reasonable doubt, at most harmless constitutional error*fn3 [cf. Chapman v. State of California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)*fn4]
"The only real allegation of prejudice asserted in petitioner's application is that the defense had to select jurors with an eye toward avoiding the death penalty and that this resulted in the dismissal of jurors who would otherwise have been selected. We find that this allegation is purely speculative in that there is no basis in fact for the claim that the group of jurors selected was more likely to return a conviction than those members of the jury panel that might have been chosen. * * * Consequently, we are convinced beyond a reasonable doubt that petitioner was not harmed by being subjected to the possibility of the death penalty at his third trial. This finding is supported by the fact that at that trial he was convicted only of the lesser crime of second-degree murder."*fn5
In the event that prejudice should be more than speculative, there is every indication that the principles of the cases cited in this opinion would not be applied retroactively to state court action taken in April 1959, which was consistent with the constitutional rules effective at that time. See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and cases there cited.
The judgment of the District Court will ...