238 F2d 782 Johnson v. Graham

238 F.2d 782

David H. JOHNSON, Appellant,


Marcell GRAHAM, Warden of the Utah State Prison, Appellee.

No. 5478.

United States Court of Appeals Tenth Circuit.

November 23, 1956.

Dorothy E. Binder, Denver, Colo., for appellant.

Walter L. Budge, Asst. Atty. Gen., State of Utah (E. R. Callister, Atty. Gen., State of Utah, on the brief), for appellee.

Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.


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This is an appeal from an order denying a petition for a writ of habeas corpus. Johnson, the applicant for the writ, sought discharge from confinement in the Utah State Prison, under a judgment of conviction for the offense of murder by a state court of Utah.


The only allegation in the petition, with respect to the exhaustion by Johnson of his remedies in the state courts of Utah, reads as follows: "Petitioner claims that he has exhausted remedy in the courts of the State of Utah."


At the oral argument it was conceded that Johnson had not filed a petition for certiorari in the Supreme Court of the United States, seeking review of any decision by a Utah court.


We conclude that there was no sufficient allegation or showing that Johnson had exhausted his state remedies.1


It follows that the order below must be and it is affirmed.


1. Wild v. State of Oklahoma, 10 Cir., 187 F.2d 409, 410; Thompson v. Overlade, 7 Cir., 216 F.2d 492, 493.