United States ex rel. Harding v. Marks

JAMES HUNTER, III, Circuit Judge

(dissenting):

I respectfully dissent. While trial counsel’s decision not to object to the charge at the trial level was within his implied authority and was binding on petitioner, without regard to Harding’s participation in that decision,1 Harding did not deliberately bypass orderly state procedures. In addition, in my view the trial court’s instruction denied petitioner his fourteenth amendment right to a fair and impartial trial. Accordingly, I would affirm.

Recently, in Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891, 43 L.Ed.2d 196 (1975),…