April 28, 1969
UNITED STATES OF AMERICA EX REL. CHARLES NELSON, #43203, APPELLANT,
WARREN PINTO, SUPERINTENDENT.
Before KALODNER, FREEDMAN and SEITZ, Circuit Judges.
Opinion OF THE COURT
The relator, Nelson, is now serving sentences in a New Jersey prison imposed following a jury trial in which he was found guilty on indictments charging him with rape of a 12-year old girl and atrocious assault and battery.*fn1 No appeal was taken from the relator's conviction. He, however, subsequently sought post-conviction relief in connection with his rape conviction in the New Jersey courts, claiming: (1) rape of a 12-year old girl is not covered by the New Jersey statute which makes rape of a "woman" a crime; (2) he was denied his constitutional right of a speedy trial; and (3) erroneous admission of medical testimony at his trial.
The Law Division of the Superior Court of New Jersey rejected the relator's contentions and the Appellate Division of the Superior Court dismissed his appeal as frivolous. (Docket No. AM-219-66, A-1308-66, June 27, 1967). The relator's petition to appeal as an indigent to the New Jersey Supreme Court was treated as a petition for certification and denied for lack of merit. (M-74, Sept. Term 1967, Oct 3, 1967).
The instant petition for habeas corpus relief was then filed in the court below raising the identical issues presented in the New Jersey post conviction proceeding. It was denied without rehearing.
On review of the record we are of the opinion that the instant appeal is frivolous in every respect and does not merit discussion.
The Order of the District Court denying the relator's petition for a writ of habeas corpus will be affirmed.