Henry v. Tinsley, 7988.
| Decision Date | 12 April 1965 |
| Docket Number | No. 7988.,7988. |
| Citation | 344 F.2d 109 |
| Parties | Jere Lane HENRY, Appellant, v. Harry C. TINSLEY, Warden, Colorado State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ronald S. Pred, of Goldberg & Pred, Denver, Colo., for appellant.
James W. Creamer, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., State of Colorado, on the brief), for appellee.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
The trial court dismissed appellant Henry's habeas corpus petition because he had not exhausted his state court remedies. Appellant sought relief from a four to five year sentence imposed by a Colorado court after a jury verdict of guilty. Appointed counsel represented him at the state trial and argued a motion for new trial but did not appear at the time of imposition of sentence. His complaint is that the sentence is void because of the absence of counsel when sentence was pronounced.
Rule 35(b) of the Colorado Rules of Criminal Procedure is substantially similar to 28 U.S.C. § 2255 and furnishes a readily available remedy for post-conviction relief. Colorado Rules 37 and 39 permit appellate review by writ of error of decisions made under Rule 35(b).
Appellant brought a Rule 35(b) proceeding in the sentencing court and was denied relief. He did not appeal to the Colorado Supreme Court. Later he filed an original habeas corpus petition in the state supreme court. In Colorado the sole question in a habeas corpus action by one convicted of a crime is whether the sentencing court had jurisdiction of the person and the offense and whether the sentence was within the statutory limitations.1 The Colorado Supreme Court dismissed the habeas corpus petition. Nothing in the record indicates, and the appellant may not claim, that the state supreme court reached the merits of his petition.
Section 2254, 28 U.S.C., provides that federal habeas corpus is not available to a state prisoner unless he has exhausted the remedies available in the state courts. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837, holds that § 2254 "is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court."
When appellant filed his federal habeas application, he still had time to seek a review by writ of error in the state supreme court of the adverse ruling in his state Rule 35(b) proceeding.2 Under Fay v. Noia, § 2254 applies because he did not exhaust a state remedy open to him at the time he sought relief by habeas corpus from the federal court.
The disposition by the state supreme court of the habeas corpus petition did not satisfy the requirement of exhaustion of state remedies because...
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...10 Cir., 335 F.2d 581; Keller v. Tinsley, 10 Cir., 335 F.2d 144, cert. denied 379 U.S. 938, 85 S.Ct. 342, 13 L.Ed.2d 348; Henry v. Tinsley, 10 Cir., 344 F.2d 109; Battista v. Kenton, supra; Pratt v. Hagan, 3 Cir., 273 F.2d Affirmed. ...
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Burns v. Crouse, 8043.
...83 S.Ct. 822, 9 L.Ed.2d 837; Wagenknecht v. Crouse, 10 Cir., 344 F.2d 920; Von Eiselein v. Taylor, 10 Cir., 344 F.2d 919; Henry v. Tinsley, 10 Cir., 344 F.2d 109. In federal habeas corpus proceedings brought by state prisoners, the district court should require a showing that the petitioner......
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Patterson v. Hampton, 8346.
...35(b), Colorado Rules of Criminal Procedure, which we have construed to be "substantially similar" to 28 U.S.C. § 2255. See Henry v. Tinsley, 10 Cir., 344 F.2d 109. We are convinced that the Colorado rule is adequate, effective and available to test the question presented here; that petitio......