Clarence E. Tyler, Petitioner, Appellant, v. v. L. Pepersack, Warden, Maryland Penitentiary, Appellee, 235 F.2d 29 (4th Cir. 1956)

This is an appeal from an order denying a petition for a writ of habeas corpus by a prisoner incarcerated under the judgment and sentence of a court of the state of Maryland. The petition was properly denied for the reason that the contentions raised in the petition had been passed on by the Court of Appeals of Maryland, Tyler v. Warden of Md. Penitentiary, 206 Md. 635, 109 A.2d 919, and there was nothing to show that they had not been properly considered and passed on by that tribunal. Brown v. Allen, 344 U.S. 443, 457-458, 73 S. Ct. 397, 97 L. Ed. 469. Furthermore, state remedies have not been exhausted in that no application has been made to the Supreme Court of the United States for certiorari to review the action of the state courts. Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761. If the case were properly before us, we would accordingly affirm the action of the court below. The appeal must be dismissed, however, for failure of appellant to obtain the certificate of probable cause required by 28 U.S.C. § 2253. Cumberland v. (Pepersack) Warden, 4 Cir., 227 F.2d 310.

Appeal dismissed.