Tyson v. Swenson

PER CURIAM.

This is an appeal from an order dismissing after hearing a petition for a writ of habeas corpus filed by a person imprisoned by a Maryland state court as punishment for the crime of murder. It appears that appellant was duly convicted of murder by a jury in a trial had in the Maryland court where he was properly represented by competent counsel appointed by the court. His complaint is that evidence of a witness tending to establish an alibi in his behalf was not introduced on the trial. There is nothing to indicate, however, that the trial was not properly conducted, that appellant was not adequately represented by counsel or that any ground exists which would justify a federal court in treating the trial as a nullity and ordering the discharge of the prisoner. It is too well settled to justify discussion that habeas corpus in a federal court may not be used to retry issues properly heard and disposed of in a state court trial. The petition for habeas corpus and the appeal from the order of discharge are, therefore, entirely lacking in merit. The judge below properly declined for this reason to grant the appellant the certificate of probable cause required by 28 U.S.C.A. § 2253 as prerequisite to the right of appeal; and without such certificate we are without jurisdiction to entertain the appeal, which will accordingly be dismissed. Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717 ; Bernard v. Brady, Warden, 4 Cir., 164 F.2d 881 .

Appeal dismissed.