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George W. Palmer v. Howard M. Comstock

George W. PALMER, Appellant, v. Howard M. COMSTOCK Et Al., Appellees

Palmer v. Comstock, 394 F.2d 395 (9th Cir. 1968)
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Court
Court of Appeals for the Ninth Circuit · U.S. Courts of Appeals
Decided
May 23, 1968
Docket
No. 22084
Judges
Madden, Claims, Merrill, Browning
Citations
394 F.2d 395

Opinion of the Court — Per Curiam

PER CURIAM.

The district court’s judgment dismissing appellant’s petition for habeas corpus is affirmed on the ground that appellant has not exhausted available state remedies. Morehead v. State of California, 339 F.2d 170 (9th Cir. 1964).

On Rehearing — Per Curiam

ON PETITION FOR REHEARING PER CURIAM:

Appellant contends that the exhaustion requirement of 28 U.S.C. § 2254 has been satisfied because a petition for habeas corpus raising the constitutional issues was submitted to and denied by a state trial court, and “These issues * * * need only be presented once.” Schiers v. People of State of California, 333 F.2d 173, 174 (9th Cir. 1964) . Schiers holds only that the issues raised and rejected in an appeal from a judgment of conviction need not be submitted a second time to the state courts through state habeas corpus proceedings. Blair v. People of State of California, 340 F.2d 741, 744 (9th Cir. 1965) is to the same effect. Schiers does not hold that a habeas corpus petitioner may move directly from a state trial court to a federal court without *396 first submitting the issues to state appellate tribunals. To the contrary, “[i]t is apparent that appellant must first perfect his appeal throughout the State court hierarchy before requesting relief from the federal courts.” Morehead v. State of California, 339 F.2d 170, 171 (9th Cir. 1964). It would be particularly inappropriate to by-pass the state appellate courts in this case for the decision principally relied upon by appellant, Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967), was announced after the denial of appellant’s petition by the state trial court “and the California courts have never had an opportunity to appraise petitioner’s rights in the light of that opinion.” Schiers, supra, 333 F.2d at 177 , Accord, Blair, supra, 340 F.2d at 745 .

The petition for rehearing is denied.

Combined text as published — syllabus, headnotes and all opinions in one document

394 F.2d 395

George W. PALMER, Appellant, v. Howard M. COMSTOCK et al., Appellees.

No. 22084.

United States Court of Appeals Ninth Circuit.

April 16, 1968, Rehearing Denied May 23, 1968.

Edward D. O'Brian (argued), Anaheim, Cal., for appellant.

Jack R. Winkler (argued), Deputy Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Thomas C. Lynch, Atty. Gen., Sacramento, Cal., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and MERRILL and BROWNING, Circuit Judges.

PER CURIAM.

1

The district court's judgment dismissing appellant's petition for habeas corpus is affirmed on the ground that appellant has not exhausted available state remedies. Morehead v. State of California, 339 F.2d 170 (9th Cir. 1964).

ON PETITION FOR REHEARING

PER CURIAM:

2

Appellant contends that the exhaustion requirement of 28 U.S.C. 2254 has been satisfied because a petition for habeas corpus raising the constitutional issues was submitted to and denied by a state trial court, and 'These issues * * * need only be presented once.' Schiers v. People of State of California, 333 F.2d 173, 174 (9th Cir. 1964). Schiers holds only that the issues raised and rejected in an appeal from a judgment of conviction need not be submitted a second time to the state courts through state habeas corpus proceedings. Blair v. People of State of California, 340 F.2d 741, 744 (9th Cir. 1965) is to the same effect. Schiers does not hold that a habeas corpus petitioner may move directly from a state trial court to a federal court without first submitting the issues to state appellate tribunals. To the contrary, 'it is apparent that appellant must first perfect his appeal throughout the State court hierarchy before requesting relief from the federal courts.' Morehead v. State of California, 339 F.2d 170, 171 (9th Cir. 1964). It would be particularly inappropriate to by-pass the state appellate courts in this case for the decision principally relied upon by appellant, Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967), was announced after the denial of appellant's petition by the state trial court 'and the California courts have never had an opportunity to appraise petitioner's rights in the light of that opinion.' Schiers, supra, 333 F.2d at 177 , Accord, Blair, supra, 340 F.2d at 745 .

3

The petition for rehearing is denied.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1969: 41970: 21974: 21979: 119692026peak 1969 · 4

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Schiers v. California, 333 F.2d 173 (9th Cir. 1964) 50
Mempa v. Rhay, 389 U.S. 128 (1967) 1,257
Blair v. People of the State of Cal., Robert A. Heinze, 340 F.2d 741 (9th Cir. 1965) 70
Morehead v. California, 339 F.2d 170 (9th Cir. 1964) 34

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