United States of America Ex Rel. Oscar McIntyre Gordon v. David N. Myers, Superintendent

OPINION OF THE COURT PER CURIAM. We agree with the view expressed by Judge Kraft in his painstaking opinion 1 filed after an evidentiary hearing, that appellant was in fact represented by counsel. The question whether there was a conflict of interests in counsel’s representing appellant as well as the co-defendant in the circumstances of this case, is one which Judge Kraft did not decide, on the ground that it had not yet been presented to the state court. On appeal there is no dispute between the parties that the state court remedy on this claim has not been exhausted. We therefore affirm the district court’s denial of the petition for habeas corpus without prejudice to appellant’s right to pursue the claim of conflict of interest in the state court. Footnotes [1] 265 F.Supp. 664.