214 F.2d 312
United States Court of Appeals Ninth Circuit.
June 24, 1954.
A. J. Zirpoli, San Francisco, Cal., for appellant.
Edward G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., State of California, for appellee.
Before DENMAN, Chief Judge, and HEALY and BONE, Circuit Judges.
Rupp has appealed from an order of the United States District Court for the Northern District of California, 117 F. Supp. 376, denying him a writ of habeas corpus. The Warden moves to dismiss the appeal as frivolous, contending that the application shows on its face that Rupp has not exhausted his state remedies by petitioning a California state court for the issuance of the writ.
Rupp, in San Quentin, as well could have petitioned the Supreme Court of California, which was then in session in San Francisco, for his writ of habeas corpus as applying to the district court in that city. The state supreme court or any justice thereof has the power to stay his execution. Cf. In re McCracken, Crim. 5418 Supreme Court of California. We are advised by the authorities at San Quentin that the date of Rupp's execution has not been set and his attorney has ample time to seek his state remedies.
Since it appears that Rupp has not exhausted his state remedies, the condition precedent to the district court's jurisdiction required by 28 U.S.C. § 2254, the later court's decision is so obviously correct that the appeal is frivolous.
The motion to dismiss the appeal is ordered granted.