Hooker v. Boles, No. 9823.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPER CURIAM
Citation346 F.2d 285
PartiesJohn Harry HOOKER, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
Docket NumberNo. 9823.
Decision Date31 May 1965

346 F.2d 285 (1965)

John Harry HOOKER, Appellant,
v.
Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.

No. 9823.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1965.

Decided May 31, 1965.


Arthur T. Ciccarello, Charleston, W. Va., for appellant.

George H. Mitchell, Asst. Atty. Gen. of West Virginia, (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellee.

Before SOBELOFF and BOREMAN, Circuit Judges, and STANLEY, District Judge.

PER CURIAM:

Petitioner, John Harry Hooker, appeals from a judgment of the District Court for the Northern District of West Virginia dismissing, after a hearing, his habeas corpus petition. For reasons hereinafter stated, we think the judgment must be reversed.

On June 29, 1955, petitioner was found guilty of breaking and entering, the maximum penalty for which offense was confinement in the penitentiary for a period of ten years. When the jury verdict was returned, petitioner's employed counsel made a motion to set it aside and grant a new trial. The court

346 F.2d 286
set the motion down for argument on July 5. According to the District Court's findings of fact, the state court at that time sentenced petitioner for an indeterminate term of from one to ten years in the state penitentiary as provided by statute. W.Va.Code § 5953 (Michie 1961).1 On the same day, June 29, the prosecuting attorney tendered for filing an information charging petitioner with two prior felony convictions. The information was not then received by the court, but a copy of it was given to petitioner's attorney. Under the state habitual criminal statute, these prior convictions, if admitted by petitioner or if he denied them and the state proved to the satisfaction of a jury that he was the same person charged in the information, would compel the court to sentence petitioner to imprisonment for the remainder of his natural life. W.Va.Code §§ 6130 and 6131 (Michie 1961)

On July 5 the court heard arguments on petitioner's motion for a new trial which motion was immediately denied. Thereupon, the prosecuting attorney again presented the recidivist information which the court accepted. Thereupon, the court directed petitioner to the witness stand and asked him if he was the same person charged in the information with having been convicted of the prior offenses. Petitioner admitted that he was and the court proceeded to sentence him to prison for life.

In his petition for habeas corpus filed in the District Court, petitioner alleged that the life sentence was void as the state court was without jurisdiction because it failed to "duly caution" him of his rights as required by the recidivist statute and that such failure was a denial of due process under the Fourteenth Amendment. The District Court specifically found that the state court did not inform petitioner of the nature and effect of the proceedings nor caution him as to his rights to remain silent and...

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8 practice notes
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • 12 Enero 1966
    ...the statute, Code, 61-11-19, as amended, before the additional sentence was imposed. The recent case of Hocker v. Boles, Warden, 4 Cir., 346 F.2d 285, (decided May 31, 1965), also relied on by the petitioner to support his contention with regard to not being duly cautioned, is quite differe......
  • Vance v. Hedrick, No. 80-6800
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 17 Septiembre 1981
    ...--------------- * Honorable Norman P. Ramsey, District Judge for the District of Maryland, sitting by designation. 1 Hooker v. Boles, 346 F.2d 285 (4th Cir. 1965); Spry v. Boles, 299 F.2d 332 (4th Cir. 2 It was wholly unnecessary to the result of Albright, of course, to have characterized t......
  • State ex rel. McClure v. Boles, No. 12464
    • United States
    • Supreme Court of West Virginia
    • 22 Junio 1965
    ...to delegate the performance of that duty to any other person. State ex rel. Beckett v. Boles, W.Va. 138 S.E.2d 851; Hooker v. Boles, 346 F.2d 285, fourth circuit, decided May 31, 1965; Mounts v. Boles, 326 F.2d 186, fourth circuit; Spry v. Boles, 299 F.2d 332, fourth circuit. See also Carro......
  • Meadows v. Boles, Civ. A. No. 544-E.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 22 Junio 1966
    ...requirements of due process under the Fourteenth Amendment and would, of course, merit federal habeas corpus relief. Hooker v. Boles, 346 F.2d 285 (4th Cir. 1965), at The main issue in such habeas corpus proceedings, as it has evolved in the Fourth Circuit Court of Appeals, is whether the t......
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8 cases
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • 12 Enero 1966
    ...the statute, Code, 61-11-19, as amended, before the additional sentence was imposed. The recent case of Hocker v. Boles, Warden, 4 Cir., 346 F.2d 285, (decided May 31, 1965), also relied on by the petitioner to support his contention with regard to not being duly cautioned, is quite differe......
  • Vance v. Hedrick, No. 80-6800
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 17 Septiembre 1981
    ...--------------- * Honorable Norman P. Ramsey, District Judge for the District of Maryland, sitting by designation. 1 Hooker v. Boles, 346 F.2d 285 (4th Cir. 1965); Spry v. Boles, 299 F.2d 332 (4th Cir. 2 It was wholly unnecessary to the result of Albright, of course, to have characterized t......
  • State ex rel. McClure v. Boles, No. 12464
    • United States
    • Supreme Court of West Virginia
    • 22 Junio 1965
    ...to delegate the performance of that duty to any other person. State ex rel. Beckett v. Boles, W.Va. 138 S.E.2d 851; Hooker v. Boles, 346 F.2d 285, fourth circuit, decided May 31, 1965; Mounts v. Boles, 326 F.2d 186, fourth circuit; Spry v. Boles, 299 F.2d 332, fourth circuit. See also Carro......
  • Meadows v. Boles, Civ. A. No. 544-E.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 22 Junio 1966
    ...requirements of due process under the Fourteenth Amendment and would, of course, merit federal habeas corpus relief. Hooker v. Boles, 346 F.2d 285 (4th Cir. 1965), at The main issue in such habeas corpus proceedings, as it has evolved in the Fourth Circuit Court of Appeals, is whether the t......
  • Request a trial to view additional results

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