430 F2d 1329 United States Carter v. S York C

430 F.2d 1329

UNITED STATES ex rel. Frances CARTER, Petitioner-Appellant-Appellee,
v.
Janet S. YORK, Superintendent and Warden, Community
Correctional Institution, Niantic, Connecticut, and as
Deputy Commissioner of Corrections of said State; and Ellis
C. MacDougall, Commissioner of Corrections of the State of
Connecticut, Respondents-Appellants.

Nos. 918, 919, Dockets 35042, 35057.

United States Court of Appeals, Second Circuit.

Argued July 7, 1970.
Decided July 24, 1970.

David B. Salzman, Asst. State's Atty. for Connecticut, New Haven, Conn., for respondents-appellants.

Jerome E. Caplan, and David M. Borden, Hartford, Conn., for petitioner-appellant-appellee.

Before FRIENDLY, SMITH and HAYS, Circuit Judges.

PER CURIAM:

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1

The United States District Court for the District of Connecticut ordered Connecticut state authorities to release Frances Carter on bail pending her appeal from a state court contempt order committing her to jail for 'not longer than six months or further order of Court,' for refusal to testify at a preliminary hearing after having been granted immunity.

2

We reverse the order of the district court admitting Miss Carter to bail.

3

Miss Carter failed to exhaust her remedies in the state courts by appealing from the trial court's denial of her application for bail after the trial court had decided the suppression motion. Moreover we believe the federal district court should have deferred to the determination by the state court that under state law Miss Carter could still have purged herself of contempt and was therefore not entitled to bail. The cases of Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) and Yates v. United States, 227 F.2d 844 (9th Cir. 1955) upon which the appellee seeks to rely are distinguishable since they involve federal rather than state prisoners.

4

We are informed that Miss Carter has taken the stand in the state court trial and has testified. In the light of this the state court may wish to reconsider its disposition of her case.

5

Reversed.