Opinion
No. 10399.
April 14, 1947.
Appeal from the District Court of the United States for the Eastern District of Michigan; Frank A. Picard, Judge.
Habeas corpus proceeding by John Spidel against Ralph E. Benson, Warden, State Prison of Southern Michigan. From a judgment denying the petition, the petitioner appeals.
Affirmed.
Thomas E. Hackett, of Cincinnati, Ohio, for appellant.
Foss O. Eldred and Perry A. Maynard, both of Lansing, Mich., for appellee.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
This cause came on to be heard on the record and upon the oral argument and brief for appellant, no appearance having been made and no brief having been filed by the Attorney General of Michigan for the appellee, Ralph E. Benson, Warden;
And it appearing that the appellant filed a petition for writ of habeas corpus in the Supreme Court of Michigan, to which an answer was filed by the appellee warden, and that the State Supreme Court denied the application for the writ, following which no application for a writ of certiorari was made by the petitioner to the Supreme Court of the United States; and that on September 26, 1945, appellant filed a petition in the United States District Court for the Eastern District of Michigan seeking a writ of habeas corpus, which petition was denied on February 13, 1946, after hearing in open court;
And it appearing here, as it did in Dawsett v. Benson, Warden, 6 Cir., 156 F.2d 669, that no application for a writ of certiorari to review the denial of the writ of habeas corpus by the Supreme Court of Michigan has been made to the Supreme Court of the United States; that no new allegations of fact have been presented in the petition so as to bring the case within the doctrine stated in White v. Ragen, Warden, 324 U.S. 760, 65 S.Ct. 978, 89 L. Ed. 1348, relied on by appellant; and that the petitioner has therefore not exhausted the state remedies available to him (Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; McCrea v. Jackson, Warden, 6 Cir., 148 F.2d 193);
It is ordered that the judgment of the district court denying the petition for a writ of habeas corpus be and is hereby affirmed.