283 F2d 816 Hamilton v. J Buchkoe
283 F.2d 816
Leonard G. HAMILTON, Appellant,
Raymond J. BUCHKOE, Warden, et al., Appellees.
United States Court of Appeals Sixth Circuit.
October 21, 1960.
Leonard G. Hamilton, in pro. per.
Various papers have been filed in this court, entitled as above, designated as Certificate of Probable Cause, Judge's Certificate of Settled Statement of Proceedings for Certificate of Probable Cause, Praecipe for Hearing, Motion for Leave to File and Affidavit to Proceed in Forma Pauperis, Notice of Appeal to Sixth Circuit Court of Appeals, Motion and Brief in Support of Motion. This court will consider all of these together as an application to this court for certificate of probable cause to allow petitioner to appeal from an order of the United States District Court for the Western District of Michigan, entered on or about October 1, 1960, denying the application of Leonard G. Hamilton for issuance of a writ of habeas corpus and dismissing his petition.
The papers before this court disclose that the appellant, Leonard G. Hamilton, is incarcerated in one of the state prisons of Michigan, presumably by virtue of process issued out of one of the courts of that state. The aforesaid papers do not disclose that the petitioner has availed himself of any state remedies. In any event, he has not exhausted them. This petitioner should be advised of the law limiting his right to apply to the United States District Court for writ of habeas corpus. Section 2254, Title 28, U.S.C., provides:
"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state, or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."
Petitioner should likewise be advised that his petition for writ of habeas corpus to the United States District Court having been denied, he cannot appeal to this court without obtaining a certificate of probable cause, either from the District Judge or a Circuit Judge. This is provided in Section 2253, Title 28 U.S.C., as follows:
"An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause."
By reason of the foregoing, It is hereby ordered (a) petitioner's application for certificate of probable cause is denied, (b) petitioner's application for leave to proceed in forma pauperis is denied, (c) application for stenographic minutes and notes is denied, and (d) no appeal from the order of the United States District Court for the Western District of Michigan is presently pending in this court.