Bolling v. Smyth, 8090.
| Decision Date | 08 June 1960 |
| Docket Number | No. 8090.,8090. |
| Citation | 281 F.2d 192 |
| Parties | Joe BOLLING, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John H. Giezentanner, Asheville, N. C. (court-appointed counsel), for appellant.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (A. S. Harrison, Jr., Atty. Gen. of Virginia, on the brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
A Virginia recidivist filed a petition for a writ of habeas corpus in which he challenges the legality of his first and fourth convictions.
As to his first conviction in 1938, he first contends he was tried and acquitted by a jury, but, nevertheless, was sentenced to prison by the court upon a plea of guilty entered after he had been misled into the belief he was pleading to a reduced charge of a misdemeanor. A verdict of a jury finding "the defendant" not guilty is endorsed on the indictment. Other court records, copies of which have been presented to this court, only some of which were before the District Court, suggest that it may have been one of his codefendants, not this defendant, who was tried and acquitted by the jury.
As to the 1938 conviction, he also contends that he had no counsel and was not informed of his right to counsel. If his assertions of special circumstances are true, there would be, at least, a grave question of the constitutionality of this conviction. Holly v. Smyth, 4 Cir., 280 F.2d 536.
The District Court did not reach these factual questions, for it was of the opinion that they were foreclosed by an order of Virginia's Supreme Court of Appeals denying an original petition filed in that court. That order, however, denied the petition without explanation. Whether that order was based upon the pendency of a similar petition in the Circuit Court of Chesterfield County or whether it was based upon a resolution of any of the factual questions is not apparent on the record in this court. Since, on the present record, it is unknown whether Virginia's Supreme Court of Appeals has deliberately considered and resolved these questions, they were open for consideration in the District Court where they should be determined after a hearing. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.
To resolve the many factual questions, we think it appropriate to remand the case to the District Court with directions to...
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Thomas v. Cunningham
...must accept his allegations as true for the purposes of this appeal. Holly v. Smyth, 280 F.2d 536, 537 (4th Cir., 1960); Bolling v. Smyth, 281 F.2d 192 (4th Cir., 1960); Clark v. Warden, 293 F.2d 479, 481 (4th Cir., 1961); Jones v. Cunningham, 297 F.2d 851, 852 (4th Cir., 1962). The facts a......
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Davis v. State of North Carolina
...are our holdings in Clark v. Warden, 293 F.2d 479, 481 (4th Cir.1961); Player v. Steiner, 292 F.2d 1, 2 (4th Cir.1961); Bolling v. Smyth, 281 F.2d 192 (4th Cir.1960). Accord: United States ex rel. Sileo v. Martin, 269 F.2d 586, 591 (2d Cir. 1959), where the court said, "Faced with such a si......
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Townsend v. Sain
...United States ex rel. Tillery v. Cavell, 294 F.2d 12 (C.A.3d Cir.); Schlette v. People, 284 F.2d 827 (C.A.9th Cir.); Bolling v. Smyth, 281 F.2d 192 (C.A.4th Cir.); Chavez v. Dickson, 280 F.2d 727 (C.A.9th Cir.); Gay v. Graham, 269 F.2d 482 (C.A.10th Cir.); United States ex rel. Rogers v. Ri......
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Grundler v. State of North Carolina
...1953, 344 U.S. 443, 463, 73 S.Ct. 397, 97 L.Ed. 469; United States ex rel. Sileo v. Martin, 2 Cir., 1959, 269 F.2d 586; Bolling v. Smyth, 4 Cir., 1960, 281 F.2d 192. The petition for a writ of habeas corpus, together with the record of the State proceedings which was before the District Cou......