427 F2d 849 Kennedy v. State of North Carolina

427 F.2d 849

Bobby Ray KENNEDY, Appellant,
v.
STATE OF NORTH CAROLINA, Appellee.

No. 13054.

United States Court of Appeals, Fourth Circuit.

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.

PER CURIAM:

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1

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.

2

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).

3

Affirmed in part, reversed and remanded in part.