316 F.2d 776 (8th Cir. 1963), 17183, Nolan v. Nash

Docket Nº:17183.
Citation:316 F.2d 776
Party Name:Walter E. NOLAN, Appellant, v. Elbert V. NASH, Warden, Missouri State Penitentiary, Appellee.
Case Date:May 08, 1963
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 776

316 F.2d 776 (8th Cir. 1963)

Walter E. NOLAN, Appellant,

v.

Elbert V. NASH, Warden, Missouri State Penitentiary, Appellee.

No. 17183.

United States Court of Appeals, Eighth Circuit.

May 8, 1963

Rehearing Denied May 23, 1963.

Walter E. Nolan, pro se.

Thomas F. Eagleton, Atty. Gen., of the State of Missouri and Howard L. McFadden, Asst. Atty. Gen., of the State of Missouri filed typewritten brief for appellee.

Before SANBORN and BLACKMUN, Circuit Judges, and STEPHENSON, District judge.

STEPHENSON, District Judge.

This is an appeal from an order of the District Court denying appellant's application for a writ of habeas corpus. The District Court denied appellant's application for a certificate of probable cause pursuant to 28 U.S.C. § 2253, for the reason that the appeal was 'without merit, and, therefore, frivolous.' This Court ordered that appellant's application for said certificate of probable cause be granted upon the ground 'that probable cause exists for permitting an appeal to be taken on the question whether the trial court should have disposed of the application for a writ without holding a hearing, or without at least requiring appellee to file a response thereto, on the issue whether in the situation alleged the Circumstances of the review and affirmance made of appellant's conviction were such as to have satisfied due process.' Docketing of the appeal without payment of the fee was permitted and the parties were authorized to file typewritten briefs.

After examining the original record and typewritten briefs this Court affirms the holding of the District Court that the appeal is without merit. The District Court properly denied the application for a writ of habeas corpus without holding a hearing.

Appellant is confined in the Missouri State Penitentiary by virtue of a sentence from the Circuit Court of St. Louis City, rendered April 24, 1942, after a verdict of guilty by a jury on the charge

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of robbery in the first degree by means of a dangerous and deadly weapon. This judgment was affirmed by the Supreme Court of Missouri in State of Missouri v. Nolan, 171 S.W.2d 653 (Mo.1943). In 1946 appellant made application for a writ of habeas corpus which was denied because appellant had failed to exhaust his state remedies. Nolan v. Parker, 66 F.Supp. 594 (W.D.Mo.1946). Appellant brought habeas corpus proceedings in...

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