Moore, Smith and Hays, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from a judgment and order of the United States District Court for the Southern District of New York entered June 7, 1967, Edward Weinfeld, Judge, denying appellant's application for a writ of habeas corpus. United States ex rel. Forella v. Follette, 269 F. Supp. 627 (S.D.N.Y.1967). We find no error and affirm the judgment.
Appellant Forella is confined in the custody of Harold W. Follette, Warden of Green Haven Prison at Stormville, New York, pursuant to a judgment of conviction after a jury trial on charges of burglary and larceny in Westchester County Court on August 15, 1965, Dempsey, J., under concurrent sentences of 7 to 10 and 2 1/2 to 5 years imprisonment.
Petitioner was arrested on a bench warrant issued by a magistrate following the filing of an information. He contends that his rights under the Fifth, Sixth and Fourteenth Amendments were violated when a police officer was permitted to testify upon the trial that petitioner, following his arrest, made oral admissions as to exclusive possession of a car which had been observed at the scene of the burglary for which appellant was convicted.
The testimony as to the oral admissions was not objected to by petitioner's counsel upon the trial. Appellant allegedly raised the issue in a supplemental pro se brief on his appeal to the New York Appellate Division which affirmed his conviction on July 6, 1966. People v. Forella, 26 A.D.2d 772, 272 N.Y.S.2d 745 (2d Dept. 1966). A pro se brief raising the issue was also submitted with appellant's application for leave to appeal to the New York Court of Appeals, which was denied, Fuld, J., on December 7, 1966. No petition for certiorari was filed.
The District Court rejected Forella's application. On the merits, the court held that Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) applied to appellant since his trial was before the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), which was not retroactive. Johnson v. New Jersey, 384 U.S. 719, 732-734, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Applying the Escobedo standards, the court found the application deficient in that it made:
no claim that petitioner had requested or been denied any attorney; there is no charge of coercive conduct, either physical or mental; there is no allegation of overreaching; there is no challenge as to the voluntariness of his statement. In the circumstances, the fact that the post-arrest statement was made when petitioner was without the assistance of counsel, whatever may be the legal consequences thereof under the law of the State of New York, has no federal constitutional significance. [269 F. Supp. at 628]
In addition, the court further held that even assuming a constitutional defect in the admission of appellant's statements made without benefit of counsel after arrest under a bench warrant and information, federal habeas corpus relief is foreclosed by Forella's failure to make objection upon the trial to the offered admission. Citing People v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550 (1966) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), the District Court found that New York did have a policy of procedural forfeiture for failure of timely objection, which served a legitimate state interest just as the analogous federal rule, i.e., United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965) (en banc), cert. denied 383 U.S. 907, 86 S. Ct. 887, 15 L. Ed. 2d 663 (1966), serves a legitimate federal interest. This being the case, the procedural default was held effective to foreclose consideration of the constitutional claim. Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965).
We find it unnecessary to explore here the issue of waiver by failure to object*fn1 for even if no waiver existed the court was correct in holding that petitioner failed to establish his right to relief on the merits.
The trial of petitioner was prior to Miranda v. Arizona, supra, which was held in Johnson v. New Jersey, supra, to be not retroactive.
Appellant would have us read Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), as standing for the rule that whenever the state has instituted formal proceedings against an accused, the Sixth Amendment guarantee attaches. In particular, he argues that for the purposes of the Sixth Amendment, there is no difference between the filing of an indictment in Massiah and the New York procedure used here, i.e., the commencement of suit by the filing of an information. However, it is clear that there is a significant difference between an information and an indictment under New York law. An information which charges a felony:
is used to initiate a felony case in a local criminal court and serves as a basis for a preliminary examination of the felony charge in such court for the purpose of determining whether the defendant should be held thereon for the action of a grand jury. Unlike the misdemeanor "information," this felony "information" never constitutes the ultimate accusatory instrument upon which the ...