
    Willie HOLLY, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
    No. 8339.
    United States Court of Appeals Fourth Circuit.
    Argued June 23, 1961.
    Decided Sept. 14, 1961.
    F. D. G. Ribble and Daniel J. Meador, Charlottesville, Va. (court-assigned counsel), for appellant.
    Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Frederick T. Gray, Atty. Gen. of Virginia, on brief), for appellee.
    Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
   PER CURIAM.

This case was here once before, 4 Cir., 280 F.2d 536. On that occasion we held that the petition by a state prisoner for federal habeas corpus relief should not have been dismissed without a hearing. The petitioner claimed that the two sentences for recidivism which he is serving, one (imposed in 1951) for ten years in the penitentiary as a third offender and another for 15 years (imposed in 1957) as a fourth offender, are void under the Fourteenth Amendment. His reason is that included in the earlier convictions upon which these two additional punishments were predicated was a conviction —his first — in 1942, when the petitioner, then only 17 years old, was not furnished counsel at his trial. We ordered a hearing to ascertain the truth of the allegations of the petition.

A hearing was held, in which the District Court found that Holly had a lawyer in the 1942 proceeding. From this finding no appeal was taken. However, in the course of the District Court proceedings his court-appointed counsel offered an amendment to his petition in which the claim was made that the recidivist proceedings themselves were void under the Due Process and Equal Protection clauses of the Fourteenth Amendment because in those proceedings he had no counsel and was financially unable to pay counsel. The state officers having Holly in custody answered, admitting that he was without legal representation in the recidivist proceedings and that he was financially unable to employ counsel, but defended on the ground that as no special circumstances were alleged there had been no showing of a denial of constitutional rights.

Holly thus sought a square ruling on the question whether, apart from youth or any exceptional circumstances, an indigent defendant against whom the state moves to imprison him for a long term of years is entitled under constitutional guarantees to the services of appointed counsel. With great cogency his counsel argued to this court that the distinction asserted in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, between capital and non-capital cases, has been substantially repudiated by the Supreme Court.

An additional defense was interposed, namely, that Holly had failed to exhaust state remedies in that the amended petition raised for the first time in the federal court matter which had never been presented to the state courts. Examination of the state court proceedings verifies this defense. In the state courts no attack had been made on the ground that Holly had no counsel in the recidivist proceedings. We cannot assume what-the state courts’ action would be if presented with this issue. In the circumstances we think that this state prisoner’s application for federal relief must be denied at this time. We express no opinion, but keep open for future determination the legal issues that have been argued.  