placed in an unfair situation because of reliance on the Miranda warnings.
Petitioner's situation is also unlike that of the appellant Garrett in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which petitioner cites for support. Garrett had been obliged to testify to incriminating facts at a pretrial hearing in an effort to have certain evidence suppressed, and that testimony was later used by the government in its case against Garrett. The petitioner here, by his own admission, chose not to reveal certain facts at the pretrial hearing, even though those facts might tend to exculpate him of the bank robbery charge. This failure to reveal facts was raised by the government on cross-examination at the trial only after petitioner had taken the stand and chosen to tell a story different from that which he had told at the pretrial hearing. Petitioner's credibility was appropriately impeached by the use of his earlier conflicting testimony. See Harris v. New York, 401 U.S. 222, 225-226, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).
In light of the above, this court concludes as a matter of law that the record of petitioner's trial shows that he is not entitled to the requested relief. Petitioner's request for a hearing will be denied.
THE ALIBI WITNESS
In an addendum to his original action, petitioner has alleged that his alibi witness, James Groomes, was also improperly impeached by "pretrial silence." Petitioner asserts that the Doyle ruling is applicable because witness Groomes, a suspected accomplice in the bank robbery, was advised of his Fifth Amendment rights during the course of his testimony at petitioner's trial. Groomes was then cross-examined as to why he had waited for nearly a year until the time of trial before coming forward with his alibi story as to petitioner's whereabouts on the day of the bank robbery.
In Doyle, Mr. Justice Powell stated specifically that the Court found it unnecessary to reach the issue of whether it was error for defendant Doyle, while testifying as a defense witness at a co-defendant's trial, to be cross-examined as to his silence after receiving Miranda warnings at the time of his arrest. 426 U.S. at 616 footnote 6, 96 S. Ct. 2240. There is nothing in the record to indicate that Mr. Groomes was ever arrested for this bank robbery or that his silence before trial was possibly a post-arrest silence resulting from Groomes' reliance on Miranda warnings. However, even if the impeachment of witness Groomes somehow did violate Mr. Groomes' personal Fifth Amendment rights, petitioner Shadd may not claim it as error. California Bankers Ass'n v. Shultz, 416 U.S. 21, 55, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974); Couch v. United States, 409 U.S. 322, 328, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973); United States v. Skolek, 474 F.2d 582, 584 (10th Cir. 1973); Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829, 834(1966) (opinion of Chief Justice, then Circuit Judge, Burger) . Petitioner could expect that his alibi witness would be tested on cross-examination, under the accepted rules of evidence, just as any other witness. See 3A Wigmore, Evidence § 1042 (J. Chadbourne rev. 1970).
MOTIONS FOR INJUNCTIVE RELIEF AND CHANGE OF VENUE
In connection with this action, petitioner has filed a motion for injunctive relief to prohibit any of the judges of the United States District Court for the Western District of Pennsylvania from sitting as judges in any action involving petitioner Harold George Shadd. Petitioner has also filed a motion for change of venue to the Eastern District of Pennsylvania or in the alternative to the Southern District of New York. Both of these motions are based upon petitioner's belief that the members of this court are highly prejudiced against the petitioner because of misinformation placed before the court by the government and
"because the above named court has issued false and misleading orders supporting the governments (sic) false and hypocritical position and is falsely claiming that petitioner is somehow abusing the writ of habeas corpus."