199 F2d 269 Harris v. Swenson
199 F.2d 269
United States Court of Appeals Fourth Circuit.
Argued Oct. 6, 1952.
Decided Oct. 8, 1952.
Ambrose T. Hartman, Sp. Asst. Atty. Gen. of Maryland (Hall Hammond, Atty. Gen. of Maryland, on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from an order denying a petition for a writ of habeas corpus. Appellant is imprisoned under sentences of a state court of Maryland. Appellant was convicted of burglary and given a sentence of ten years on April 5, 1944. On April 12, 1944 he was indicted for the crime of robbery and a detainer was placed against him at the penitentiary where he was serving the sentence for burglary. He made numerous requests that he be brought to trial on the robbery charge and he was tried on that charge in the year 1950 and was convicted and was given a sentence of 10 years to begin upon the expiration of the burglary sentence. He contends in his application for the writ of habeas corpus that the robbery sentence is void because he was not given a speedy trial on that charge, because the indictment and conviction were not supported by evidence and because he was convicted on the testimony of an accomplice. It is perfectly clear that appellant is not entitled to a writ of habeas corpus, in any view of the case, since the matters of which he complains are matters which should have been raised on the trial and not by habeas corpus, which lies only where the judgment and sentence of the court are absolutely void. Ruben v. Welch, 4 Cir., 159 F.2d 493. Furthermore, it does not appear that appellant has exhausted his remedies in the state courts. Although there is a general allegation to that effect, the petition does not show what steps have been taken that would justify a federal court in interfering with state court action. Finally, there is no certificate of probable cause for the appeal signed by the judge below as required by 28 U.S.C.A. 2253. Consequently we are without jurisdiction. Bernard v. Brady, Warden, 4 Cir., 164 F.2d 881; Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717; Hanson v. Warden, 4 Cir., 198 F.2d 470.