250 F2d 122 Le Masters v. E H Tucker

250 F.2d 122

Eugene E. LE MASTERS, Appellant,
E. H. TUCKER, Warden, West Virginia State Penitentiary, Appellee.

No. 7512.

United States Court of Appeals Fourth Circuit.

Argued November 7, 1957.

Decided November 25, 1957.

Mathias J. DeVito, Baltimore, Md. (Court appointed counsel), for appellant.

Gene Hal Williams, Asst. Atty. Gen., of West Virginia (William Wallace Barron, Atty Gen., of West Virginia, on brief), for appellee.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.


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This is an appeal from an order denying a petition for a writ of habeas corpus by a prisoner serving sentences of imprisonment under judgments of state courts of West Virginia. The facts are fully set forth in the memorandum opinion and order of the District Judge and need not be repeated at length. The question raised by the petition is whether a court of one county of the state could impose a sentence to begin at the expiration of the sentence imposed by the court of another county. The point was presented in a petition for habeas corpus to the Supreme Court of Appeals of West Virginia, which refused the writ. The point is so lacking in merit that the court below would have been justified in denying the writ in the absence of the action taken by the state court; but, in the light of that action, there can be no question as to the correctness of the court's ruling. Brown v. Allen 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Goodwin v. Smyth, 4 Cir., 181 F.2d 498. The District Judge properly denied appellant's application for a certificate of probable cause required by 28 U.S.C. § 2253; and, in the absence of such certificate, there is nothing that we can do but dismiss the appeal.


Appeal dismissed.