Chester Campbell, Petitioner, v. William H. Bannan, Warden, State Prison of Southern Michigan, Respondent, 279 F.2d 869 (6th Cir. 1960)

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US Court of Appeals for the Sixth Circuit - 279 F.2d 869 (6th Cir. 1960) June 14, 1960

Paul L. Adams, Atty. Gen., Perry A. Maynard, Asst. Atty. Gen., in opposition to application.

WEICK, Circuit Judge.

Petitioner has applied for a certificate of probable cause to appeal the denial of his petition for habeas corpus. The District Court denied the petition and dismissed the action for the reason that petitioner had failed to exhaust his state remedies. 28 U.S.C. § 2254.

Petitioner admits that he has not presented his case to the Supreme Court of the State of Michigan, but contends that his case falls within that limited group which should be reviewed on habeas corpus without the exhaustion of state remedies. Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541. This claim is directly tied into his allegation that the state procedures are ineffective to protect his constitutional rights, in that the State had initially refused his request for a trial transcript at state expense, and that thereafter the Court Reporter died and his notes are impossible of transcription, even by experts.

Under Michigan Court Rule 60 it is not necessary to have a transcript in order to make application for leave to appeal to the Supreme Court of Michigan. Petitioner's position as to the effectiveness of the state remedy is, therefore, not well-taken.

This Court cannot assume that no effective means of presenting the errors complained of, or of protecting petitioner's constitutional rights, will be forthcoming in the event that a proper application for leave to appeal were granted by the Michigan Supreme Court. See: People v. Faczewski, 242 Mich. 523, 525, 219 N.W. 631. If the Michigan Supreme Court denies appropriate relief to petitioner, he may seek review by the Supreme Court of the United States as part of his state remedy. Darr v. Burford, Warden, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761.

The motion for a certificate of probable cause is denied.