Murray Arthur Anthony Murphy, Appellant, v. Lawrence E. Wilson, Warden, State of California, et al., Appellees, 409 F.2d 840 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 409 F.2d 840 (9th Cir. 1969) March 25, 1969

Murray A. A. Murphy, in pro. per.

Thomas C. Lynch, Atty. Gen., San Francisco, Cal., for appellees.

Before HAMLEY, HAMLIN and HUFSTEDLER, Circuit Judges.


Murray A. A. Murphy appeals from a district court order denying, without prejudice, his application for a writ of habeas corpus. Murphy asserts that in connection with his conviction of burglary by a California court on May 19, 1965, his constitutional rights were violated.

At the time Murphy applied for a writ of habeas corpus his appeal from the 1965 state conviction was pending in the California Court of Appeal. Murphy alleged, however, that he was being deprived of a complete record necessary to prosecute that appeal. He accordingly asked that the federal habeas corpus proceeding serve as a "full replacement" of the state appeal, and that a complete record on appeal be provided, and for related relief.

The trial court correctly denied the application for a writ since Murphy had not exhausted his available state remedies. He will not have exhausted his available state remedies until the state appeal proceedings have been completed and a final state judgment has been entered. Federal habeas corpus does not afford a means of transferring pending state criminal proceedings to a federal court.