310 F2d 691 Draper v. B J Rhay

310 F.2d 691

Robert DRAPER, Appellant,
v.
B. J. RHAY, Superintendent, Washington State Penitentiary, Appellee.

No. 17802.

United States Court of Appeals Ninth Circuit.

Nov. 15, 1962.

Duncan Davidson, San Francisco, Cal., for appellant.

John J. O'Connell, Atty. Gen., of Washington, Basil L. Badley, and Stephen C. Way, Asst. Atty. Gen., Olympia, Wash., for appellee.

Before MERRILL, MAGRUDER and BROWNING, Circuit Judges.

PER CURIAM.

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1

This appeal is taken from judgment of the District Court for the Eastern District of Washington, Southern Division, denying appellant's application in the alternative for a writ of coram nobis or of habeas corpus.

2

Under attack is the validity of a sentence of imprisonment. Appellant had sought a writ of coram nobis from the Superior Court of the State of Washington in and for Yakima County, the sentencing court. That court had denied relief upon the ground that coram nobis would not issue where habeas corpus was available; that only the Supreme Court of Washington or the Superior Court of Walla Walla County, within which appellant was imprisoned, had habeas corpus jurisdiction of the case.

3

Appellant has never put the Yakima court's theory to the test. Habeas corpus has never been sought in the state courts of Washington. Nor do we understand that the Yakima court's doors are closed on coram nobis, should appellant fail to secure habeas corpus, since that court never reached the merits upon the coram nobis question.

4

Under these circumstances, the District Court below, in denying appellant relief, did so upon the ground that be had failed to exhaust his state remedies.

5

We agree.

6

Judgment affirmed.