Gorden K. Darcy v. Harley O. Teets, Warden of the California State Prison at San Quentin

(concurring).

While I agree with my colleagues that the appellant’s motions should be denied, it is my opinion the order of the District Judge, dated June 6, 1955, denying the appellant’s motion for leave to file in forma pauperis and denying his petition for a writ of habeas corpus, should be affirmed for the paramount and overriding reason that the appellant has failed to exhaust his state remedies. I do not think that the main opinion makes it clear that its decision is based upon such failure as the controlling ground.

In my view, both the statute and the decisions of this court stress the principle that the exhaustion of state remedies is an indispensable condition precedent to our issuing the writ in a case of this kind.

A brief review of the record and of the applicable law may be helpful.

The petition for a writ of habeas corpus recites that “by action taken on April 6, 1955, by the Adult Authority of the State of California, petitioner’s term for (a) Santa Clara County offense was terminated. Thus, removing the obstacle to having his petition for a writ of habeas corpus directed at the judgment of conviction entered in the Superior Court of the County of Los Angeles,…

Petitioner was heretofore convicted of a State offense and is presently restrained of his liberty by the State under a judgment of a competent State court. We have examined the petition for the issuance of the writ of habeas corpus, which petition was denied by the United States District Court, and; find that it shows upon its face that petitioner has not exhausted his State remedies. He has been denied the writ by State courts under petitions presented while he was under State restraint by virtue of a sentence for another offense. No authority need be mentioned for the well known principle that the writ will not issue where it could not free the petitioner from restraint.

However, petitioner is now free from restraint other than the restraint upon the judgment in the instant case, and appears to be free to have his petition for the writ considered upon its merit by the State courts.

Appellant-petitioner has moved for permission to prosecute his appeal to this court in forma pauperis, which motion was denied by the United States District Court in the following language:

*733 There is nothing in the record to indicate that the district court was in error in ruling as it did.…

232 F.2d 732 Gorden K. DARCY, Appellant, v. Harley O. TEETS, Warden of the California State Prison at San Quentin, Appellee. No. 14962. United States Court of Appeals Ninth Circuit. March 29, 1956. Gordon K. Darcy, in pro. per. Edmund G. Brown, Atty. Gen., Arlo Smith, Deputy Atty. Gen., State of California, for appellee. Before STEPHENS, POPE and LEMMON, Circuit Judges. STEPHENS, Circuit Judge. 1 Petitioner was heretofore convicted of a State offense and is presently restrained of his liberty by the State under a judgment of a competent State court. We have examined the petition for the issuance of the writ of habeas corpus, which petition was denied by the United States District Court, and find that it shows upon its face that petitioner has not exhausted his State remedies. He has been denied the writ by State courts under petitions presented while he was under State restraint by virtue of a sentence for another offense. No authority need be mentioned for the well known principle that the writ will not issue where it could not free the petitioner from restraint. 2 However, petitioner is now free from restraint other than the restraint upon the judgment in the instant case, and…