Orr v. State of South Carolina, 201 F.2d 669 (4th Cir. 1953)Annotate this Case
Decided January 23, 1953
George H. Orr, pro se.
William A. Dallis, Asst. Atty. Gen. for South Carolina (T. C. Callison, Atty. Gen. for South Carolina, on brief), for appellee.
Before PARKER, Chief Judge, DOBIE, Circuit Judge, and WEBB, District Judge.
This is an appeal in a habeas corpus case. Appellant was convicted in a South Carolina state court of violation of the criminal laws of that state and sentenced to a term of imprisonment. He contended in the court below that the evidence in his case did not warrant his conviction, that he was not represented by counsel on his trial, that he was not afforded an opportunity to have witnesses for his defense and that he was given an excessive sentence. The District Judge, 110 F. Supp. 153, denied his application for relief on the ground that he had not exhausted his remedies under state law. This was clearly correct. As pointed out by the District Judge, appellant had the right to release under habeas corpus by the state courts if his conviction was invalid for any reason. Not until he had exhausted this remedy by application to the state courts with application, in case of denial, to the Supreme Court of the United States, would he have a right to apply for habeas corpus to the federal courts. 28 U.S.C. § 2254; Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761. We would accordingly affirm the order of the court below if we had jurisdiction of the appeal. We are without jurisdiction, however, because appellant has not obtained the certificate of probable cause required by 28 U. S.C. § 2253. Bernard v. Brady, 4 Cir., 164 F.2d 881; Berman v. Swenson, 4 Cir., 177 F.2d 717. The appeal will accordingly be dismissed.