United States Court of Appeals Second Circuit.: No. 690, Docket 33592
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Scribd Government DocsUnited States Court of Appeals Second Circuit.: No. 690, Docket 33592
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Scribd Government Docs415 F.
2d 277
UNITED STATES of America ex rel. Kenneth HEADLEY,
Bobby Sams
and Charles Huntley, Petitioners-Appellants,
v.
Vincent R. MANCUSI, Warden, Attica Prison, Attica, New
York,
et al., Respondents-Appellees.
No. 690, Docket 33592.
United States Court of Appeals Second Circuit.
Argued July 24, 1969.
Decided Sept. 12, 1969.
William E. Fuller (Fuller, Hopkins, Lawton & Taussig, New York City),
for appellants.
Brenda Soloff, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the
State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of
counsel), for appellees.
Before WATERMAN and HAYS, Circuit Judges, and BARTELS,
District judge.1
PER CURIAM:
The habeas corpus petitions of these New York State prisoners serving
sentences for robbery in the first degree were consolidated for consideration by
the district court.
Petitioners moved for permission to amend their petitions by adding claims
under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968) and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100
(1968). Their motion was denied and they appeal.
Ordinarily we would be unwilling to entertain an appeal from such an order,
since there are still pending before the district court a number of other claims of
petitioners. However, in view of our determination that petitioners must seek
relief in the state courts of New York, we believe that we would not be justified
in imposing upon them the delay which would be involved in returning them to
the district court for a complete consideration of their petitions before accepting
the appeal.
On the Bruton issue itself, we affirm the determination of the district court
requiring the petitioners to exhaust the New York State remedy available to
them under People v. Pohl, 23 N.Y.2d 290, 296 N.Y.S.2d 352, 244 N.E.2d 47
(1968). See United States ex rel. Smith v. Follette, 405 F.2d 1199 (2d Cir.
1969); United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969).
