Arthur Turco, Appellant, v. Warden, Baltimore City Jail, Appellee, 444 F.2d 56 (4th Cir. 1971)

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US Court of Appeals for the Fourth Circuit - 444 F.2d 56 (4th Cir. 1971) Argued June 10, 1971
Decided June 11, 1971

William M. Kunstler, New York City, (Harold Buchman, Baltimore, Md., on brief), for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. of Md. (Francis B. Burch, Atty. Gen., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.


Arthur Turco's petition for a writ of habeas corpus and, in the alternative, for removal of a pending criminal prosecution from the Criminal Court of Baltimore to the district court, was denied by the district judge, 324 F. Supp. 61. The writ of habeas corpus was sought to effect petitioner's release on bond pending the trial of state charges, both capital and noncapital, on which he was being held. We affirm.

The state trial judge carefully considered whether to grant bail to petitioner and concluded, inter alia, that petitioner was not a good bail risk. There was substantial evidentiary support for this conclusion, so that we cannot say that there was any abuse of discretion amounting to a denial of constitutional right. This is sufficient reason to affirm the district court, and we need not consider the other issues which are pressed. However, both by preargument motion and in oral argument, new and additional facts, considered by neither the state trial judge nor the district court, were urged upon us as grounds for issuing the writ and for fixing bail. We decline to consider them, but our affirmance of the district court is without prejudice to petitioner's right, if he be so advised, to make a new bail application to the state trial judge or to make a new application for a writ of habeas corpus to the district court.

We find no merit in petitioner's argument that there was error in denying his motion to remove the state prosecution to the district court under the provisions of 28 U.S.C.A. § 1443.