Gebhart v. Amrine
| Decision Date | 25 February 1941 |
| Docket Number | No. 2224.,2224. |
| Citation | 117 F.2d 995 |
| Parties | GEBHART v. AMRINE, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth K. Cox, of Wichita, Kan., for appellant.
No brief or appearance for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
Petitioner, M. E. Gebhart, has appealed from the decision of the District Court of the United States for the District of Kansas dismissing his application for a writ of habeas corpus. He is incarcerated in the State Penitentiary of Kansas at Lansing, Kansas, under commitment from the District Court of Shawnee County, Kansas, and complains that he is there detained in violation of his constitutional rights guaranteed by the Fourteenth Amendment to the Constitution of the United States.
The record shows that petitioner filed his application in the United States District Court on June 1, 1940, issues were joined, and on June 26, 1940, the court entered its judgment sustaining a motion to dismiss petitioner's application. On August 6, 1940, the District Court allowed an appeal in forma pauperis.
§ 466, 28 U.S.C.A., provides as follows:
Here there was no finding that probable cause exists for an appeal. In the absence of such a finding, we have no jurisdiction. Bilik v. Strassheim, 212 U.S. 551, 29 S.Ct. 684, 53 L.Ed. 649; Ex parte Patrick, 212 U.S. 555, 29 S.Ct. 686, 53 L.Ed. 650; United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262.
Furthermore, while a Federal District Court has jurisdiction to inquire by writ of habeas corpus whether petitioner is denied his constitutional rights by incarceration under commitment from a state court, the law is well settled that in the absence of extraordinary circumstances a federal court will not assume jurisdiction, the proper way for petitioner to proceed being by application to the state courts, and, if denied his claimed rights...
To continue reading
Request your trial
-
Hawk v. Olson
...State Prison, 309 U.S. 661, 60 S.Ct. 583, 84 L.Ed. 1009; In re Anderson, 9 Cir., 117 F.2d 939; Id., 9 Cir., 118 F.2d 750; Gebhart v. Amrine, 10 Cir., 117 F.2d 995; Achtien v. Dowd, 7 Cir., 117 F. 2d 989, 994, 995; Davis v. Dowd, 7 Cir., 119 F.2d 338; Kramer v. State of Nevada, 9 Cir., 122 F......
-
Amrine v. Tines
...28 L.Ed. 542; Mooney v. Holohan, 294 U. S. 103, 113, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Smith v. O'Grady, supra; Gebhart v. Amrine, 10 Cir., 117 F.2d 995; Achtien v. Dowd, 7 Cir., 117 F.2d 989. It follows that habeas corpus in the Federal court is available to challenge the cause of......
-
Downs v. Hudspeth
...164 F.2d 127; Spidel v. Benson, 6 Cir., 162 F.2d 197; United States v. Warden of Clinton State Prison, 2 Cir., 163 F.2d 978; Gebhart v. Amrine, 10 Cir., 117 F.2d 995; and Bernard v. Brady, 4 Cir., 164 F.2d What has been said is dispositive of the three cases. The issue interjected at the he......
-
Johnson v. Wilson
...States, in Behalf of Tulee, v. House, Sheriff, 9 Cir., 110 F.2d 797; Achtien v. Dowd, Warden, 7 Cir., 117 F. 2d 989; Gebhart v. Amrine, Warden, 10 Cir., 117 F.2d 995; John Botwinski v. Dowd, 7 Cir., 118 F.2d 829, certiorari denied, 314 U.S. 586, 62 S.Ct. 476, 86 L.Ed. 473; Davis v. Dowd, Wa......