Darcy

Darcy, serving a life sentence in the California state penitentiary for the crime of kidnapping for the purpose of robbery, appeals from an order of the district court dismissing his application for a writ of habeas corpus. The application alleged, inter alia, that in the trial leading to his conviction he was denied the effective assistance of counsel.

The dismissal was not on the ground that it appeared from the application that Darcy was not entitled thereto. 28 U.S.C. § 2243 . The dismissal was based on the failure to exhaust his state remedy as required by 28 U.S.C. § 2254 , providing:

It is not questioned that Darcy had an available procedure under the California Penal Code, § 1473, providing: “§ 1473. [Who may prosecute writ.] Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.”

Darcy petitioned the California state supreme court under this statute and his petition was denied. He failed to seek a writ of certiorari from the United States Supreme Court and the district court held, “Exhaustion of state remedies includes application…