Touche v. Lainson

¶4PER CURIAM.

¶5This is an appeal irom an order of the United States District Court for the Southern District of Iowa, denying the appellant’s petition for a writ of habeas corpus on the ground that the allegations of his petition are insufficient to entitle him to such a writ.

¶6The District Court did not err in denying the writ. The petition shows that the appellant is an inmate of the Iowa State Penitentiary at Fort Madison, Iowa; that he was committed to that institution by the District Court of the State of Iowa for Lee County on September 28, 1944, after having been convicted of the crime of Escape and having been found to be an habitual criminal within the meaning of § 13400 of the Iowa Code of 1939.

¶7While the petitioner claims to have exhausted his State remedies and asserts that “On or about May 1, 1942, petitioner did cause petition for a writ of habeas corpus to be filed in his behalf, continuing said action through State Supreme Court and into United States District Court without avail,” it is apparent that that proceeding could relate only to a prior detention under a previous conviction. There is nothing in the appellant’s petition to indicate that he has sought to test in the State courts of Iowa the validity of his detention under the conviction of September 28, 1944, or that adequate and efficient remedies for that purpose are not available in such courts. A federal district court will not grant a writ of habeas corpus where a state prisoner has not exhausted his available state remedies or has failed to make a substantial showing of a denial of some federal right. See Ex parte Hawk; 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, and compare § 2254 of 28 U.S.C.A. which became effective September 1, 1948.

¶8The order appealed from is affirmed.