Virgil Lee Smith v. Lawrence E. Wilson, Warden, California State Prison, Tamal, California
Opinion
Opinion
Hamlin, J.
This is an appeal from an order of the United States District Court for the Northern District of California, Southern Division, dated July 29, 1965, denying appellant’s petition for a writ of habeas corpus. The district court did not issue an order to show cause nor did it hold a hearing.
Appellant has been convicted three times — on February 24', 1953, October 21, 1957, and December 3, 1963 — of second degree robbery, a violation of California Penal Code section 211. On each occasion the California Superior Court sentenced him to the term prescribed by law, life imprisonment. On the latter two convictions the act in question occurred while he was on parole.
Appellant presently challenges only the December 3, 1963 conviction from which he did not appeal. In August, 1964, petitioner sought to file a petition for a writ of habeas corpus and to proceed in forma pauperis in the United States District Court for the Northern District of California, Southern Division. On August 28, 1964, the district court denied leave to proceed in forma pauperis and dismissed the petition because it did not show “petitioner has exhausted his remedies in the state courts.”