United States ex rel. Smith v. Skeen

BOREMAN, District Judge.

Petitioner seeks a writ of habeas corpus ad subjiciendum and alleges several grounds in support of his petition. Petitioner was indicted in the Circuit Court of Fayette County, West Virginia, on a charge of attempted rape, was sentenced to a term of one to five years’ imprisonment and is now confined in the West Virginia State Penitentiary in Mounds-ville, West Virginia.

Without considering the merits of petitioner’s contentions, it is the opinion °f this Court that the petition for writ of habeas corpus must be denied.

It is well séttled that, in order to invoke the jurisdiction of a Federal District Court in a habeas corpus proceeding, the petitioner must affirmatively show that he has exhausted all remedies available to him in the state courts, and this includes application to the Supreme Court of the United States for writ of certiorari where the Supreme Court of the state has denied his petition. Harrison v. Skeen, D.C.N.D.W.Va.1954, 125 F.Supp. 547, appeal dismissed 4 Cir., 1955, 226 F.2d 217; Bradley v. Skeen, D.C.N.D.W.Va.1954, 125 F.Supp. 844, appeal dismissed 4 Cir., 1955, 222 F.2d 716; Harrison v. Skeen, D.C.N.D.W.Va.1953, 114 F.Supp. 695; Bradley v. Skeen, D.C.N.D.W.Va.1953, 114 F.Supp. 697; United States ex rel. Farmer v. Skeen, 4 Cir., 1953, 203 F.2d 950; Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572.

In the instant case, the petition alleges that petitioner requested a writ of habeas corpus ad subjiciendum on three different occasions from the Supreme Court of Appeals of West Virginia but that he was refused a hearing on each occasion. The petition does not show, however, that petitioner applied to the Supreme Court of the United States for a writ of certiorari. On the contrary, the record as a whole shows that no such application was made to the United States Supreme Court.

■ It is apparent that petitioner has failed to exhaust all remedies available to him in the state courts and cannot invoke the jurisdiction of this court in this proceeding. His petition for writ of habeas corpus ad subjiciendum is denied.