Robert T. Gravette v. E. L. Maxwell, Warden , 340 F.2d 95 ( 1965 )

340 F.2d 95

Robert T. GRAVETTE, Petitioner, Appellant,
v.
E. L. MAXWELL, Warden, Respondent Appellee.

No. 15847.

United States Court of Appeals Sixth Circuit.

January 14, 1965.

Kenneth B. Bassett (court appointed), Cincinnati, Ohio, for appellant.

John Cianflona, Asst. Atty. Gen., Columbus, Ohio, William B. Saxbe, Atty. Gen., Columbus, Ohio, on brief, for appellee.

Before WEICK, Chief Judge, CECIL, Circuit Judge, and TALBOT SMITH, District Judge.

PER CURIAM.

1

This is an appeal by Robert T. Gravette from an order of the District Court of the Southern District of Ohio, Eastern Division, dismissing his petition for writ of habeas corpus.

2

Petitioner, indicted by the Grand Jury, entered a plea of guilty in the Common Pleas Court of Cuyahoga County to the charge of felonious assault upon a nine year old girl. He was sent to the Lima State Hospital, in accordance with statutory provisions therefor, and upon discharge he was transferred to the Ohio State Penitentiary to serve an indeterminate sentence of from one to ten years. He alleges in his petition that rights guaranteed him under the Federal Constitution have been violated.

3

The application for writ now before us is the first procedure initiated by him in any court, state or federal. Yet the Constitution of the State of Ohio grants the Supreme Court of that state original jurisdiction in habeas corpus.1 In addition a procedure is available to him for petitioning for a delayed appeal to the Court of Appeals of Cuyahoga County.2

4

As noted, neither of these remedies has been sought, far less acted upon. This being the case, petitioner is in no position to argue the inadequacy or ineffectiveness3 of his post-conviction remedies. We are of the opinion that his petition to the District Court was properly dismissed, despite his able appointed counsel's argument to the contrary. Click v. State of Ohio (C.A.6), 319 F.2d 855; Saulsbury v. Green (C.A.6), 318 F.2d 320.

5

The judgment of the District Court is affirmed.

Notes:

1

See, also, Section 2725.02 of the Ohio Revised Code

2

Section 2953.05, Ohio Revised Code

3

28 U.S.C.A. § 2254