Bobby Ray Kennedy, Appellant, v. State of North Carolina, Appellee, 427 F.2d 849 (4th Cir. 1970)

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US Court of Appeals for the Fourth Circuit - 427 F.2d 849 (4th Cir. 1970) Argued February 5, 1970
Decided June 12, 1970

Matthew N. Ott, Jr., Richmond, Va. (Court-appointed counsel) for appellant.

Jacob L. Safron, Raleigh, N. C., Staff Atty., Office of Atty. Gen. of N. C. (Robert Morgan, Atty. Gen. of N. C., and Edward L. Eatman, Jr., Staff Atty., Raleigh, N. C., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and CRAVEN, Circuit Judges.


On March 25, 1968, Kennedy filed a petition for writ of habeas corpus in federal court. In this petition he raised all of the points raised in his previous state petition and, in addition, the point that he was coerced to abandon his appeal when his attorney told him that he would be tried on other charges (possession of burglary tools), if he appealed and was successful. The district court denied the petition without a hearing. We agree with the district court that the claims previously presented to the state courts are without merit.

At oral argument, Kennedy's counsel conceded that he had failed to exhaust his state remedy on the denial of appeal issue. We remand to the district court for further proceedings similar to and consistent with the order of remand in James v. Copinger, 428 F.2d 235 (4th Cir. 1970).

Affirmed in part, reversed and remanded in part.