Opinion
No. 6577.
Submitted April 7, 1953.
Decided May 1, 1953.
A.B. Farmer, pro se.
John G. Fox, Atty. Gen. of W. Va., and T.D. Kauffelt, Asst. Atty. Gen. of W. Va., on the brief, for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from an order denying a writ of habeas corpus to appellant, who was convicted of crime in a West Virginia state court and is imprisoned under the judgment and sentence of that court. Prior to filing the petition in the court below, appellant had attacked the judgment and sentence in a habeas corpus proceeding in the courts of the state and had there been denied relief in a judgment which had been affirmed by the Supreme Court of Appeals of the state. Ex parte Farmer, 123 W. Va. 304, 14 S.E.2d 910. As no application to the Supreme Court of the United States was made to review that decision by certiorari, remedies under state law were not exhausted. Darr v. Buford, Warden, 339 U.S. 200, 70 S.Ct. 587, 94 L. Ed. 761. Furthermore, the judge below was acting within the limits of his discretion in not issuing the writ when it appeared that all questions raised in the petition before him had been thoroughly examined and acted upon by the state courts. Brown v. Allen, 344 U.S. 443, 457-458, 73 S.Ct. 397, 437. We would accordingly affirm the decision below if the case were properly before us. The appeal must be dismissed, however, for failure of appellant to obtain the certificate of probable cause required by 28 U.S.C. § 2253. Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717.
Appeal dismissed.