384 F2d 623 Collins v. Swenson

384 F.2d 623

Jesse Franklin COLLINS, Appellant,
v.
Harold SWENSON, Warden, Appellee.

No. 18736.

United States Court of Appeals Eighth Circuit.

Oct. 31, 1967.

Jesse Franklin Collins, pro se.

Norman H. Anderson, Atty. Gen., and Donald L. Randolph, Asst. Atty. Gen., of Missouri, Jefferson City, Mo., filed printed brief for appellee.

Before MEHAFFY and GIBSON, Circuit Judges, and STEPHENSON, District judge.

PER CURIAM.

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1

In 1963, after conviction by jury in the State of Missouri, appellant was sentenced under the state habitual criminal statute to a term of fifteen yars for a narcotic offense. On appeal, with aid of appointed counsel, this sentence was vacated, and the cause remanded for further hearing and testimony on the application of the habitual criminal statute. State v. Collins (Mo.1964) 383 S.W.2d 747. After rehearing and further proof under the statute, which was found to be applicable, appellant was re-sentenced to the same term, with credit for time served on the first sentence. Again, with appointed counsel, appeal was had, and the conviction was affirmed. State v. Collins (Mo.1965) 394 S.W.2d 368. After this second appeal no further proceedings were had in the state courts, and appellant has never filed a motion to vacate his sentence under the Missouri provisions for post-conviction relief, Supreme Court Rule of Criminal Procedure, No. 27.26, 42 V.A.M.S.

2

The instant federal petition for writ of habeas corpus was filed on Nevember 17, 1966, and relief was denied upon a finding that appellant had failed to exhaust his state remedies.

3

We affirm on the basis of Baines v. Swenson, 8 Cir., 384 F.2d 621, opinion filed October 31, 1967.