Opinion
No. 506-70.
January 14, 1971.
Kent Frizzell, Atty. Gen. and Edward G. Collister, Jr., Asst. Atty. Gen. have filed a Motion to Affirm and Suggestions in Support of Summary Affirmance on behalf of appellee.
William Glenn Denney, has filed a Memorandum Opposing Summary Affirmance and a Traverse of Appellee's Motion for Summary Affirmance pro se.
Before LEWIS, Chief Judge, BREITENSTEIN and McWILLIAMS, Circuit Judges.
On December 9, 1969, the District Court of Cherokee County, Kansas imposed a forty (40) year sentence after Denney was convicted on charges of second-degree burglary and grand larceny. The direct appeal is now pending in the Kansas Supreme Court.
The federal district court denied habeas corpus relief for failure to exhaust available state remedies. We agree. This court has held that state remedies cannot be exhausted if an appeal from a state conviction is pending. Kessinger v. Page, 369 F.2d 799 (10th Cir. 1966) and Lee v. State of Kansas, 346 F.2d 48 (10th Cir. 1965). He must thereafter also initiate state postconviction relief pursuant to K.S.A. § 60-1507. Brown v. Crouse, 395 F.2d 755 (10th Cir. 1968) and Omo v. Crouse, 395 F.2d 757 (10th Cir. 1968).
We find no merit in Denney's attempt to show that available state remedies were not available when this petition was filed for he had not yet been sentenced. He also claims that the exhaustion requirement is inapplicable since the relief he seeks is allegedly pursuant to the Civil Rights Act, 42 U.S.C. § 1983. We have found no reference to that Act in the record. Regardless, the Civil Rights statute cannot be used by a state prisoner to circumvent the exhaustion requirement of 28 U.S.C. § 2254. Smartt v. Avery, 411 F.2d 408 (6th Cir. 1969).
Our initial review of this case prompted us to assign it to the Summary Calendar because of the unsubstantial issue presented. In addition, the appellee has filed a motion to affirm. A consideration of Denney's memorandum addressing the underlying merits, along with a thorough review of the files and record in this cause, convinces us that the judgment of the district court is correct and should be affirmed.
Accordingly, the motion to affirm is granted and the judgment is affirmed.