No. 690, Docket 33592.United States Court of Appeals, Second Circuit.Argued July 24, 1969.
Decided September 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.[*]
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).