Farmer v. Skeen, 426-F.

• Decision Date: 22 November 1954
• Docket Number: No. 426-F.,426-F.
• Citation: 125 F. Supp. 549
• Parties: A. B. FARMER, Petitioner, v. Orel J. SKEEN, Warden, West Virginia Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

125 F. Supp. 549

A. B. FARMER, Petitioner, v. Orel J. SKEEN, Warden, West Virginia Penitentiary, Respondent.

No. 426-F.

United States District Court N. D. West Virginia, Fairmont Division.

November 22, 1954.

Russell L. Furbee, Fairmont, W. Va., for petitioner.

John G. Fox, Atty. Gen. of W. Va., and T. D. Kauffelt, Asst. Atty. Gen., for respondent.

WATKINS, Chief Judge.

This is the second petition filed in this court for a writ of habeas corpus by petitioner, a state prisoner serving a 25-year sentence in the West Virginia Penitentiary for armed robbery. The first petition was dismissed by this court on October 15, 1952, for the reasons stated in an opinion filed by this court. United States ex rel. Farmer v. Skeen United States ex rel. Farmer v. Thomson D.C. N.D.W.Va., 107 F.Supp. 877. Petitioner was denied a certificate of probable cause on December 8, 1952. On appeal the action of this court was affirmed. United States ex rel. Farmer v. Skeen, 4 Cir., 203 F.2d 950. There the appellate court said:

"Prior to filing the petition in the court below, appellant had attacked the judgment and sentence in a habeas corpus proceeding in the courts of the state and had there been denied relief in a judgment which had been affirmed by the Supreme Court of Appeals of the state. Ex parte Farmer, 123 W.Va. 304, 14 S.E.2d 910. As no application to the Supreme Court of the United States was made to review that decision by certiorari, remedies under state law were not exhausted. Darr v. Buford, Warden, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. Furthermore, the judge below was acting within the limits of his discretion in not issuing the writ when it appeared that all questions raised in the petition before him had been thoroughly examined and acted upon by the state courts. Brown v. Allen, 344 U.S. 443, 457-458, 73 S.Ct. 397, 437 97 L.Ed. 469. We would accordingly affirm the decision below if the case were properly before us. The appeal must be dismissed, however, for failure of appellant to obtain the certificate of probable cause required by 28 U.S.C. § 2253. Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717."

The history of this case is set out in the opinion of this court, cited above, as follows 107 F.Supp. 878:

"Petitioner was tried and convicted by a jury at the June Term 1940 of the Common Pleas Court of Cabell County, West Virginia, of attempt at armed robbery. On July 12, 1940, motions for a new trial and in arrest of judgment were overruled and petitioner was sentenced for a term of 25 years in the state penitentiary. He was represented by counsel. No appeal was prosecuted.

"On December 6, 1940 he applied to the Supreme Court of Appeals of West Virginia for a writ of habeas corpus ad subjiciendum, which on the 12th day of December, 1940 was awarded and made returnable before the Judge of the Circuit Court of Cabell County. The Warden of the West Virginia Penitentiary made return, exhibiting certified copies of the indictment, of the court record of arraignment, trial, conviction and commitment, and produced the body of petitioner on the 19th day of December, 1940, when a trial was had, resulting in the discharge of the writ and the remanding of the prisoner. Twenty-four grounds were assigned for the issuance of the writ, most of them relating wholly to what is claimed to be errors in the original trial. As stated by the Supreme Court of West Virginia, that court, `out of its solicitude for the rights of a lay petitioner, felt justified in issuing the writ in order that a full investigation of the charges made, or intimated, might be had.' Ex parte Farmer, 123 W.Va. 304, 14 S.E.2d 910, 912, 913. On December 26, 1940, after a full hearing, the Circuit Court of Cabell County dismissed the writ and petitioner was remanded to the warden of the state penitentiary. An appeal was taken to the Supreme Court of Appeals of West Virginia, where the action of the lower court was affirmed. No application was made to the Supreme Court of the United

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