Wyman W. Graeber v. B. J. Rhay, as Superintendent of the Washington State Penitentiary at Walla Walla, Washington

PER CURIAM.

Graeber appeals from the denial of his application for a writ of habeas corpus which seeks his release from a penitentiary in the State of Washington upon sentence after a jury conviction for robbery. The writ was denied because there was no showing of an exhaustion of state remedies as required by 28 U.S.C. § 2254 as construed by the Supreme Court in Darr v. Burford, 339 U.S. 200 , 70 S.Ct. 587 , 94 L.Ed. 761 .

There had been a prior application for a writ of habeas corpus by Graeber on different issues from the instant application, upon the denial of which Graeber v. Schneckloth, 9 Cir., 241 F.2d 710 , certiorari was sought and denied. Graeber v. Washington 351 U.S. 970 , 76 S.Ct. 1036 , 100 L.Ed. 1488 . Graeber apparently relies on the seeking of the writ in the first case as supplying its presence in the second. The Supreme Court has repeatedly held that the denial of a writ of certiorari is of no significance whatsoever in determining anything about the decision concerning which it is sought. Brown v. Allen, 344 U.S. 443, 497 , 73 S.Ct. 397 , 97 L.Ed. 469 ; Elgin, J., & E. Ry. Co. v. Gibson, 355 U.S. 897 , 78 S.Ct. 270 , 2 L.Ed.2d 193 . Since Graeber has not exhausted his state remedies in this case the District Court was without jurisdiction to consider his application.

We affirm the denial of the writ.