432 F2d 923 Leigh v. R J Gaffney

432 F.2d 923

Howard E. LEIGH, Appellant,
v.
R. J. GAFFNEY, Warden, Kansas State Penitentiary, Lansing,
Kansas, Appellee.

No. 312-70.

United States Court of Appeals, Tenth Circuit.

Oct. 5, 1970.

Kent Frizzell, Atty. Gen., and Edward G. Collister, Jr., Asst. Atty. Gen., for appellee.

Howard E. Leigh, pro se.

Before LEWIS, Chief Judge, PICKETT, Circuit Judge, and KERR, District judge.

PER CURIAM.

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1

Leigh was notified that the court was considering summary affirmance and appellee thereafter filed a motion to affirm. Leigh was afforded an opportunity to file a memorandum addressing the merits of the cause and opposing summary affirmance, which he has done. He has also filed a motion for appointment of counsel and for oral argument. These motions are denied.

2

From examination of the file and record in this case, it is manifest that the single question presented, the necessity that Leigh first exhaust available state remedies before seeking federal habeas relief, is so unsubstantial as not to warrant further argument.

3

Accordingly, the motion of appellee is granted and the judgment of the district court is affirmed for the reasons stated in the Memorandum and Order of the district court, 318 F.Supp. 85 (D.Kan.1970).