United States v. Herold

• Decision Date: 06 August 1965
• Docket Number: Docket 29203.,No. 537,537
• Citation: 349 F.2d 372
• Parties: UNITED STATES of America ex rel. Granville BOODIE, Relator-Appellant, v. Ross E. HEROLD, Director, Dannemora State Hospital, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

349 F.2d 372 (1965)

UNITED STATES of America ex rel. Granville BOODIE, Relator-Appellant, v. Ross E. HEROLD, Director, Dannemora State Hospital, Dannemora, New York, Respondent-Appellee.

No. 537, Docket 29203.

United States Court of Appeals Second Circuit.

Argued July 26, 1965.

Decided August 6, 1965.

Lois P. Sheinfeld, New York City (Anthony F. Marra, New York City, on the brief), for relator-appellant.

Brenda Soloff, Deputy Asst. Atty. Gen., of New York, New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Barry Mahoney, Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and HAYS and ANDERSON, Circuit Judges.

LUMBARD, Chief Judge:

Granville Boodie appeals from the denial of his petition for a writ of habeas corpus wherein he challenges his 1960 New York state conviction for manslaughter. The petition was denied without a hearing by Judge Cannella in the United States District Court for the Southern District of New York, who found no violation of constitutional rights. At the same time the district judge granted a certificate of probable cause (28 U.S.C. § 2253) and leave to appeal in forma pauperis and he assigned counsel.

The sole ground urged by Boodie on this appeal is that the use at trial of portions of a statement made by him to police officers, when he was without the assistance of counsel, deprived him of his right to counsel under the Sixth Amendment. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964).

Boodie was arrested on February 27, 1960 and charged with felonious assault after a fight with Cecil Butler, the husband of the deceased, in the apartment shared by Butler, Boodie and their wives. Investigation after the fight disclosed the body of Mrs. Butler, who had died as a result of stab wounds. Boodie was arraigned on the felonious assault charge on the following day, February 28. On March 7, 1960, Boodie was paroled so that he could be taken into the custody of police officers investigating Mrs. Butler's death. Shortly thereafter, he made a non-incriminating statement, portions of which were used, without objection, to impeach Boodie's testimony at trial.

Boodie's conviction was affirmed by the Appellate Division, People v. Boodie, 16 App.Div.2d 904, 229 N.Y.S.2d 429 (1st Dept. 1962) (per curiam; two justices dissenting), and by the New York Court of Appeals, 12 N.Y.2d 963, 238 N.Y.S.2d 958, 189 N.E.2d 494 (1963) (per curiam). On these appeals, Boodie urged that his right to counsel had been abridged. Notwithstanding, we find that the requirement of 28 U.S.C. § 2254 that "applicant has exhausted the remedies available in the courts of the State" has not been fulfilled, as Boodie's claims on this appeal are based in large part on matters which were not before the State courts or before the district court.

The briefs on the state court appeals disclose that the record of the arraignment proceedings of February 28, 1960 were not before the courts.¹ The state courts have been given no opportunity to pass upon the alleged denial of counsel in light of a full record. Apparently, Boodie was represented by counsel at this hearing. The examination of that record, and perhaps the holding of a hearing, may...