228 F2d 188 United States Atkins v. B Martin

228 F.2d 188

UNITED STATES ex rel. Walter B. ATKINS, Relator-Appellant,

v.

Walter B. MARTIN, Warden of Attica State Prison, Respondent-Appellee.

No. 116.

Docket 23579.

United States Court of Appeals Second Circuit.

Argued December 6, 1955.

Decided December 22, 1955.

Walter B. Atkins, pro se.

Jacob K. Javits, Atty. Gen., of the State of New York, for appellee. James O. Moore, Jr., Sol. Gen., Buffalo, N. Y., and Abe Wagman, Asst. Atty. Gen., of counsel.

Before SWAN, FRANK and LUMBARD, Circuit Judges.

PER CURIAM.

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1

In 1939 the appellant pleaded guilty in a state court in Florida to a charge of "assault to commit manslaughter" and was sentenced to twelve months in the county jail. In 1947 he pleaded guilty in a state court in New York to a charge of second degree assault, and was sentenced as a second offender because of his prior conviction in Florida. He is at present serving the New York sentence in Attica State Prison.

2

In the court below the relator attacked the validity of his Florida conviction on the ground that the Florida court failed to inform him of his right to counsel. After hearing his testimony Judge Burke concluded that his conviction and sentence in Florida were not attended by any element of unfairness, nor was he deprived of due process under the 14th Amendment. See Quicksall v. People of State of Michigan, 339 U.S. 660, 666, 70 S.Ct. 910, 94 L.Ed. 1188; United State ex rel. Turpin v. Warden of Green Haven Prison, 2 Cir., 190 F.2d 252, 253, certiorari denied Turpin v. Warden of Green Haven Prison of State of New York, 342 U.S. 872, 72 S.Ct. 116, 96 L.Ed. 656. Furthermore, it does not appear that the relator has exhausted his remedies in the Florida courts. In 1954 he petitioned the sentencing court to set aside its sentence, and it does not appear that he appealed from the denial of his petition, although he was informed by the Attorney General of Florida of his right to appeal.

3

Judgment affirmed.