338 F2d 697 Leo Duboise v. State of North Carolina

338 F.2d 697

Leo DuBOISE, Appellant,
v.
STATE OF NORTH CAROLINA, Appellee.

No. 9466.

United States Court of Appeals Fourth Circuit.

Argued November 12, 1964.

Decided November 16, 1964.

Ronald P. Sokol, Charlottesville, Va. (Court-assigned counsel), for appellant.

Andrew A. Vanore, Jr., Asst. Atty. Gen. of North Carolina (Thomas Wade Bruton, Atty. Gen. of North Carolina, and Theodore C. Brown, Jr., Asst. Atty. Gen. of North Carolina, on brief), for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and THOMSEN, District Judge.

PER CURIAM.

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1

Leo DuBoise, a prisoner of the State of North Carolina, filed his petition in the court below for a writ of habeas corpus alleging that at the time of his trial he "requested that he be put on the stand in his own behalf" and that his counsel "did not want your petitioner to take the stand in his own behalf."

2

The District Court, accepting the factual allegations of the petition as true, concluded that they presented no constitutional question and dismissed the petition without requiring the state to answer and without a hearing.

3

Following dismissal of his petition, DuBoise addressed to one of the individual judges of this court what purports to be a "Petition for Writ of Certiorari," appearing in the record on appeal, in which he attempts to allege facts in addition to those alleged in his habeas corpus petition.

4

We affirm the action of the District Court, without prejudice, however, to petitioner's right to amend his original petition or file a new petition as he may be advised.

5

Affirmed.