Makowski v. Benson

PER CURIAM.

This cause came on to be heard on the record and briefs for the petitioner-appellant and for appellee, Ralph E. Benson, Warden;

And it appearing that the petitioner filed a petition in the Circuit Court for the County of Jackson, State of Michigan, for a writ of habeas corpus, which was denied, and that the petitioner thereafter filed another petition for a writ of habeas corpus in the Circuit Court for the County of Jackson, State of Michigan, which was denied on June 15, 1944, and it not appearing that an appeal was taken from either of said orders; and it further appearing that the petitioner also filed a petition in the Supreme Court for the State of Michigan for a writ of habeas corpus, which was denied on October 6, 1944, and it not appearing that an application was made by the appellant in the United States Supreme Court for a writ of certiorari; and since the petitioner therefore has not exhausted the state remedies available to him (Ex parte Hawk, 321 U.S. 114 , 64 S.Ct. 448 , 88 L.Ed. 572 ; Dawsett v. Benson, 6 Cir., 156 F.2d 669 );

And since such facts appear undisputed from the record herein and are not affected in any way by any statements of fact or argument relative to the merits of the case contained in the brief recently filed on behalf of the appellee, which petitioner-appellant claims are erroneous, and since the resulting lack of jurisdiction to consider the case on its merits renders such factual issue immaterial to the present ruling,

It is ordered that the judgment of the District Court denying the petition for a writ of habeas corpus be and is hereby affirmed.