Opinion
Civ. No. 371-F.
August 27, 1953.
W. Ralph Musgrove, of Fairmont, W. Va., for petitioner.
Petitioner filed a petition in this court for writ of habeas corpus. He is now serving a sentence in a state prison for murder, which sentence was imposed upon him by the Circuit Court of Boone County, West Virginia, in March, 1937. He asked this court to proceed in forma pauperis and to appoint counsel for him, which requests were granted. After a hearing upon his petition, it was dismissed by order entered August 10, 1953, for the reason that there was no showing whatsoever that the defendant had done anything to exhaust his state remedies, as set forth in a memorandum opinion filed by the court on August 10, 1953. Bradley v. Skeen, D.C., 114 F. Supp. 697.
On August 18, 1953, petitioner filed his petition for a certificate of probable cause, which certificate is hereby denied.
If petitioner desires to raise any constitutional question which would invalidate his sentence, he should prepare and file a new petition with the Circuit Court of Marshall County where he is now confined by state authority. If the warden of the state penitentiary or the state authorities refuse to permit him to file any such petition, he may then set up such facts in a new petition, setting forth the facts constituting a denial of state remedy, and the facts to support the denial of his constitutional rights for the consideration of this court. No such facts were presented in the original petition, or at the hearing, and the court acted properly in dismissing his petition.