Richard L. Hunt v. Frank A. Eyman, Warden

Appellant is a prisoner of the State of Arizona, convicted of grand theft, Ariz. R.S. §§ 13-661, 13-663, with a prior felony charge, violation of the Dyer Act, 18 U.S.C. § 2312 . He was sentenced as a recidivist, receiving a longer sentence (12 years) than that provided by the statute defining the substantive offense (10 years maximum). He did not appeal, but, within the time allowed for appeal, filed petitions for writs of habeas corpus in the state courts, which were denied without opinion. He could still appeal his conviction in the state court if he could show that his failure to appeal was “without fault on his part.” (Rule 16(a), Rules of the Supreme Court of Arizona, 17 Ariz.R.S.) The district judge denied the present petition for a writ of habeas corpus on the ground that appellant had not exhausted his state remedies. ( 28 U.S.C. § 2254 (b), (c).) He thought it probable that the state courts denied the writs because appellant had not appealed his conviction.

Because there is doubt whether appellant now has an available state remedy as defined in 28 U.S.C. § 2254 , we decide the matter on other grounds.

1. The recidivist issue.

Since appellant’s petition was filed, the…