United States of America, Ex Rel. Golden Frinks v. J. G. Barwick, Superintendent of Gates County Prison Unit 014, Gatesville, North Carolina

331 F.2d 597, 1964 U.S. App. LEXIS 5549

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 27, 1964
• Docket: 9334
• Status: Published

Opinion

PER CURIAM.

This matter is before the court on an appeal from an order of the district court for the Eastern District of North Carolina discharging a writ of habeas corpus. The district court also declined to admit the petitioner to bail pending this appeal. The effect of such denial was to compel the petitioner to serve out the jail sen-fence before he could have a review of its legality.

His principal claim was that he had been denied assistance of counsel in a state proceeding in which the court invoked a six months suspended sentence against him and ordered that the term be served. The district court based its action on the ground that the petitioner had failed to exhaust available state rem-e(jies_

We hold that the petitioner, having theretofore squarely presented to the Supreme Court of North Carolina his contention that he was denied counsel in the revocation proceeding, and having been denied relief in that court, he is not further obliged to pursue alternate procedures for relief in the state courts, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Grundler v. North Carolina, 283 F.2d 798 (4 Cir. 1960).

The case will, therefore, be remanded' to the district court to hear the petition for habeas corpus on its merits. The-order heretofore entered by Judge Bell, a member of this court, admitting the petitioner to bail pending the final outcome' of this case, is hereby continued in effect.

Remanded.