199 F2d 28 Baley v. Tondre

199 F.2d 28



TONDRE, Warden.

No. 4507.

United States Court of Appeals Tenth Circuit.

September 9, 1952.

Robert S. Appel, Denver, Colo., for appellant.

James B. Cooney, Asst. Atty. Gen., of New Mexico (Joe L. Martinez, Atty. Gen. of New Mexico, and W. F. Kitts, Asst. Atty. Gen. of New Mexico, were with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.


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The petitioner, an inmate of the New Mexico State Penitentiary, brought this habeas corpus proceeding in the Federal district court for the District of New Mexico alleging that he was unlawfully held by the Warden of that institution. The district court denied the application and this appeal was taken.


A hearing was had upon the application and the trial court found that no proceedings had been instituted in the state court to test the validity of the detention and the record does not disclose that at the time of the hearing there was any justification for failure to exhaust the available state remedies. Under such circumstances, the Federal district court will not ordinarily entertain an application for habeas corpus. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761.