Baley v. Tondre, Warden, 199 F.2d 28 (10th Cir. 1952)

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US Court of Appeals for the Tenth Circuit - 199 F.2d 28 (10th Cir. 1952) September 9, 1952

Robert S. Appel, Denver, Colo., for appellant.

James B. Cooney, Asst. Atty. Gen., of New Mexico (Joe L. Martinez, Atty. Gen. of New Mexico, and W. F. Kitts, Asst. Atty. Gen. of New Mexico, were with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.


The petitioner, an inmate of the New Mexico State Penitentiary, brought this habeas corpus proceeding in the Federal district court for the District of New Mexico alleging that he was unlawfully held by the Warden of that institution. The district court denied the application and this appeal was taken.

A hearing was had upon the application and the trial court found that no proceedings had been instituted in the state court to test the validity of the detention and the record does not disclose that at the time of the hearing there was any justification for failure to exhaust the available state remedies. Under such circumstances, the Federal district court will not ordinarily entertain an application for habeas corpus. Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761.