Wyman W. Graeber, Appellant, v. B. J. Rhay, As Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Appellee, 256 F.2d 556 (9th Cir. 1958)

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US Court of Appeals for the Ninth Circuit - 256 F.2d 556 (9th Cir. 1958)

May 27, 1958

Wyman W. Graeber, Walla Walla, Wash., appellant, in pro. per.

John J. O'Connell, Atty. Gen., State of Washington, for appellee.

Before STEPHENS, Chief Judge, and DENMAN and BARNES, Circuit Judges.


Graeber appeals from the denial of his application for a writ of habeas corpus which seeks his release from a penitentiary in the State of Washington upon sentence after a jury conviction for robbery. The writ was denied because there was no showing of an exhaustion of state remedies as required by 28 U.S.C. § 2254 as construed by the Supreme Court in Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761.

There had been a prior application for a writ of habeas corpus by Graeber on different issues from the instant application, upon the denial of which Graeber v. Schneckloth, 9 Cir., 241 F.2d 710, certiorari was sought and denied. Graeber v. Washington 351 U.S. 970, 76 S. Ct. 1036, 100 L. Ed. 1488. Graeber apparently relies on the seeking of the writ in the first case as supplying its presence in the second. The Supreme Court has repeatedly held that the denial of a writ of certiorari is of no significance whatsoever in determining anything about the decision concerning which it is sought. Brown v. Allen, 344 U.S. 443, 497, 73 S. Ct. 397, 97 L. Ed. 469; Elgin, J., & E. Ry. Co. v. Gibson, 355 U.S. 897, 78 S. Ct. 270, 2 L. Ed. 2d 193. Since Graeber has not exhausted his state remedies in this case the District Court was without jurisdiction to consider his application.

We affirm the denial of the writ.