378 F.2d 57
Bobby Ray YATES, Appellant,
v.
C. C. PEYTON, Superintendent, Virginia State Penitentiary, Appellee.
No. 10932.
United States Court of Appeals Fourth Circuit.
Argued May 2, 1967.
Decided May 30, 1967.
Joseph B. Benedetti, Richmond, Va. (Court-assigned counsel) [Minor, Thompson, Savage, White & Smithers, Richmond, Va., on brief], for appellant.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and CRAVEN, Circuit Judges.
PER CURIAM:
This Virginia prisoner was tried and convicted in Cumberland County, in which we are told there are only two practicing attorneys, one of whom is the Commonwealth's Attorney and the other a part-time judge of an inferior court. The Trial Judge assigned the Commonwealth's Attorney of adjoining Powhatan County to represent Yates, and the suggestion of conflicting interest is the primary ground of this appeal.
Yates, of course, was tried before the decision of Virginia's Supreme Court of Appeals in Yates v. Peyton, 207 Va. 91, 147 S.E.2d 767 (1966), and before our decision in Goodson v. Peyton, 4 Cir., 351 F.2d 905. There was at that time no proscription of the practice.
Our examination of the record discloses no actual conflict of interest and no unfairness warranting a retroactive application of the per se rule of Goodson v. Peyton. See Yates v. Peyton, 207 Va. 91, 147 S.E.2d 767 (1966). There was no other deprivation of any fundamental right.
Denial of the writ of habeas corpus is affirmed.
Affirmed.
