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United States v. Foster.

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.


decided.: July 6, 1949.

UNITED STATES EX REL. RHEIM
v.
FOSTER.

Before SWAN and CHASE, Circuit Judges, and J. JOSEPH SMITH, District Judge.

Per Curiam.

The appellant, who is in custody pursuant to a judgment of a court of the state of New York, desires to appeal from an order of Judge Brennan denying his petition for a writ of habeas corpus. Judge Brennan refused to issue a certificate of probable cause. This precludes an appeal from denial of the writ unless such a certificate can be obtained from "a circuit justice or judge." 28 U.S.C.A. § 2253; Edmonson v. Swenson, 4 Cir. 1948, 165 F.2d 432. U.S. ex rel. Ristich v. Ragen, 7 Cir. 1947, 162 F.2d 180. The applicant has applied to our court for the issuance of a certificate of probable cause, accompanying his application with a typewritten transcript of the record in the District Court and a motion for leave to proceed in forma pauperis. This has been treated as an application to each of the three judges constituting the court when the application was presented. See House v. Mayo, 1945, 324 U.S. 42, 48, 65 S. Ct. 517, 89 L. Ed. 739. An examination of the record has convinced each of us that the application for a certificate of probable cause should be denied. The applicant was convicted in 1928 of murder in the second degree. He was represented in that trial by competent counsel. The errors therein which he now asserts do not appear to be such as deprived him of any constitutional right but, if they did, his remedy was by appeal from the judgment of conviction. Failure to avail himself of that remedy precludes resort to habeas corpus in a federal court, in the absence of exceptional circumstances, which are not shown in the present case. 28 U.S.C.A. § 2254. The same is true with respect to the state court's denial of his coram nobis proceeding; and the fact that poverty has precluded prosecuting an appeal from that order does not enlarge his right to a federal habeas corpus. United States v. Tyler, 269 U.S. 13, 19, 46 S. Ct. 1, 70 L. Ed. 138.

Application denied.

19490706

© 1998 VersusLaw Inc.



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