463 F.2d 185 (2nd Cir. 1972), 803, United States ex rel. Rogers v. LaVallee

Docket Nº:803, 72-1174.
Citation:463 F.2d 185
Party Name:UNITED STATES of America ex rel. James W. ROGERS, Petitioner-Appellant, v. Hon. J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellee.
Case Date:July 05, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 185

463 F.2d 185 (2nd Cir. 1972)

UNITED STATES of America ex rel. James W. ROGERS, Petitioner-Appellant,

v.

Hon. J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellee.

No. 803, 72-1174.

United States Court of Appeals, Second Circuit.

July 5, 1972

Argued May 25, 1972.

Henry J. Formon, Jr., New York City, for petitioner-appellant.

Mortimer Sattler, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Iris A. Steel, Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LEVENTHAL, [*] FEINBERG and TIMBERS, Circuit Judges.

FEINBERG, Circuit Judge:

James W. Rogers is presently incarcerated in the Clinton Correctional Facility, Dannemora, New York, where he is serving a 20 year to life sentence imposed after his conviction in May 1970 in New York State Supreme Court, Kings County, for kidnapping in the first degree. In July 1971, Rogers filed a petition for writ of habeas corpus in the United States District Court for the Northern District of New York, claiming that his conviction violated his rights under the double jeopardy clause of the sixth amendment. Judge Edmund Port in a Memorandum decision

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and order dated August 31, 1971 denied the petition without a hearing on the ground that it failed to allege facts supporting petitioner's constitutional claim. On February 29, 1972, this court granted petitioner's motion for a certificate of probable cause, leave to appeal in forma pauperis and assignment of counsel. Thereafter, under our system of supervising each state prisoner habeas appeal, as well as each direct criminal appeal, we fixed a briefing schedule, and heard argument on May 25, 1972. For reasons set forth below, we remand to the district court to dismiss the petition for exhaustion of state remedies.

I

To understand appellant's constitutional claims the events leading up to his conviction must be briefly recounted. As indicated below, much of what apparently transpired in the state courts was never made clear to the district judge. In 1969, a Kings County grand jury returned a four-count indictment against appellant in connection with the abduction and death of an 18 month-old child. Appellant was charged with (1) felony murder first degree, (2) murder, (3) kidnapping first degree (abduction...

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