United States of America, Ex Rel. Golden Frinks, Appellant, v. J. G. Barwick, Superintendent of Gates County Prison Unit 014, Gatesville, North Carolina, Appellee, 331 F.2d 597 (4th Cir. 1964)

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US Court of Appeals for the Fourth Circuit - 331 F.2d 597 (4th Cir. 1964) Argued April 23, 1964
Decided April 27, 1964

Arthur Kinoy, New York City (Earl Whitted, Jr., Goldsboro, N. C., J. Robert Lunney, New York City, Samuel S. Mitchell, Raleigh, N. C., Charles T. McKinney, New York City, Floyd B. McKissick, Durham, N. C., William M. Kunstler, Michael J. Kunstler, and Kunstler, Kunstler & Kinoy, New York City, on brief), for appellant.

Theodore C. Brown, Jr., Staff Attorney for State of North Carolina (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for appellee.

Before SOBELOFF, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.


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 sentence 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 remedies.

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.