United States of America Ex Rel. Walter Jones, Petitioner-appellee, v. Honorable Harold W. Follette, As Warden of Green Haven Prison, Stormville, New York, Respondent-appellant, 361 F.2d 324 (2d Cir. 1966)

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US Court of Appeals for the Second Circuit - 361 F.2d 324 (2d Cir. 1966) Argued March 29, 1966
Decided May 18, 1966

Thomas F. O'Hare, Jr., Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Barry Mahoney, Asst. Atty. Gen., on brief), for appellant.

Joshua N. Koplovitz, Anthony F. Marra, New York City, for appellee.

Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.

PER CURIAM:


Walter Jones, a New York State prisoner, attacks a 1938 New York conviction which resulted in his being given in 1960 a second sentence to run consecutively to that imposed on the 1938 conviction. His complaint is that at a preliminary hearing before a magistrate, in answer to a question on an official form asking for any explanation of the circumstances which he thought proper and for any facts which he might think tended to exculpate him, Jones answered "I am guilty." The court record is silent as to whether Jones had theretofore been advised of his rights to counsel or as to what the then practice was. Judge Bonsal, in the District Court for the Southern District of New York, granted the petition without an evidentiary hearing.

As to the People's right to a hearing, we see no meaningful distinction between this case and United States ex rel. Mitchell v. Follette (2 Cir. 1966), 358 F.2d 922 decided after the order here was entered. Accordingly, for the reasons there stated and without reaching the merits we reverse the order and direct an evidentiary hearing.