April 6, 1965
THE UNITED STATES OF AMERICA EX REL. ROBERT WEBER, PETITIONER-APPELLANT,
EDWARD M. FAY, WARDEN OF GREEN HAVEN PRISON, STORMVILLE, NEW YORK, RESPONDENT-APPELLEE.
Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL, Circuit Judges.
This is an appeal from a denial of an application for a writ of habeas corpus by the United States District Court for the Southern District of New York, Cannella, J. The basic facts appear in our prior opinion on the previous appeal of this appellant, United States ex rel. Weber v. People of State of New York and Fay, 316 F.2d 603 (2 Cir.), cert. denied 375 U.S. 822, 84 S. Ct. 62, 11 L. Ed. 2d 56 (1963), and will not be repeated here. Both appeals involve the constitutionality of the New York procedure for revocation of parole of state prisoners. The allegations of the habeas petition in the present appeal are identical with those of the habeas petition in the previous appeal save for the additional charge that the parolee had been denied the assistance of counsel in the revocation-of-parole proceedings. Specifically, in this petition appellant challenges the constitutionality of section 218 of the N.Y. Correction Law, McKinney's Consol. Laws, c. 43, which he reads as denying parolees the right to the assistance of counsel in revocation-of-parole proceedings even if such assistance is requested. Admittedly this was never raised by appellant in any state court proceeding. We therefore affirm because of failure to exhaust state remedies on this issue. United States ex rel. Kling v. LaVallee, 306 F.2d 199 (2 Cir. 1962); cf. United States ex rel. Weinstein v. Fay, 333 F.2d 815 (2 Cir. 1964).
We express our thanks to R. Kenly Webster, Esq., and S. Edmund Resciniti, Jr., Esq., for their extensive research and presentation of this appeal.
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