334 F2d 237 Dye v. E L Maxwell

334 F.2d 237

Clarence DYE, Petitioner,
v.
E. L. MAXWELL, Warden, Respondent.

No. 15569.

United States Court of Appeals Sixth Circuit.

June 5, 1964.

James O. Bradley, and Joseph C. Kammer, Cincinnati, Ohio (James O. Bradley, Cincinnati, Ohio, on the brief), for appellant.

John Cianflona, Columbus, Ohio (William B. Saxbe, Atty. Gen., John Cianflona, Asst. Atty. Gen., Columbus, Ohio, on the brief), for appellee.

Before MILLER, CECIL and O'SULLIVAN, Circuit Judges.

ORDER.

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1

Following an armed robbery in Akron, Ohio, on July 29, 1946, the petitioner, Clarence Dye, was indicted on January 20, 1947, but was not apprehended until some nine years later in Wisconsin. Following extradition he was tried and convicted of the offense of armed robbery by a jury on April 25, 1956, in the Court of Common Pleas of Summit County, Ohio. The evidence against him was entirely circumstantial. No witness testified that he was present at the robbery. He was sentenced to an indeterminate term of from 10 to 25 years in the Ohio State Penitentiary, where he is now confined.

2

His conviction was affirmed by the Court of Appeals for the Ninth Judicial District of Ohio on May 16, 1957. The Supreme Court of Ohio denied his motion for leave to appeal. On December 18, 1957, the Supreme Court of Ohio dismissed his appeal as of right. State v. Dye, 167 Ohio St. 176, 146 N.E.2d 604. Certiorari was denied by the Supreme Court of the United States on October 13, 1958. Clarence Dye v. State of Ohio, 358 U.S. 45, 79 S.Ct. 37, 3 L.Ed.2d 44.

3

The petitioner filed a petition for a writ of habeas corpus in the Court of Common Pleas of Franklin County, Ohio, which was denied. Thereafter, a petition for a writ of habeas corpus was filed in the Tenth Judicial District of Ohio, which was also denied. He then filed a third petition for writ of habeas corpus as an original action in the Supreme Court of Ohio, which was denied on November 25, 1959. In re Dye, 170 Ohio St. 97, 162 N.E.2d 520. His fourth habeas corpus action was filed in the United States District Court for the Southern District of Ohio, Eastern Division, which was denied. On an application to a member of this Court for a certificate of probable cause, the petitioner's various contentions were discussed, held to be without merit, and the application denied. Dye v. Sacks, Warden, 279 F.2d 834, C.A. 6th.

4

Since then, the petitioner has filed two applications for writs of habeas corpus in the Court of Common Pleas of Franklin County, Ohio, both of which were denied. In addition, he has filed a like application in the Supreme Court of Ohio, which was denied on June 20, 1962. Dye v. Sacks, Warden, 173 Ohio St. 422, 183 N.E.2d 380.

5

The petitioner has now filed the present petition for habeas corpus in the United States District Court for the Southern District of Ohio, Eastern Division. The District Judge sustained respondent's motion to dismiss, but issued a certificate of probable cause, which has been followed by this appeal.

6

The Court having considered the briefs filed by the petitioner on his own behalf and by his court-appointed attorneys and the brief filed on behalf of the respondent, and after having heard argument of counsel for the respective parties, is of the opinion that the judgment of the District Court should be affirmed. Dye v. United States, 279 F.2d 834, C.A. 6th; Section 2244, Title 28, United States Code.

7

It is so ordered.