David H. Johnson v. Marcell Graham, Warden of the Utah State Prison

238 F.2d 782, 1956 U.S. App. LEXIS 4097

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 23, 1956
• Docket: 5478_1
• Status: Published

Opinion

PER CURIAM.

This is an appeal from an order denying a petition for a writ of habeas corpus. Johnson, the applicant for the writ, sought discharge from confinement in the Utah State Prison, under a judgment of conviction for the offense of murder by a state court of Utah.

The only allegation in the petition, with respect to the exhaustion by Johnson of his remedies in the state courts of Utah, reads as follows: “Petitioner .claims that he has exhausted remedy in the courts of the State of Utah.”

At the oral argument it was conceded that Johnson had not filed a petition for • certiorari in the Supreme Court of the United States, seeking review of any decision by a Utah court.

We conclude that there was no sufficient allegation or showing that Johnson had exhausted his state remedies. 1

It follows that the order below must :be and it is affirmed.

1 . Wild v. State of Oklahoma, 10 Cir., 187 F.2d 409, 410; Thompson v. Overlade, 7 Cir., 216 F.2d 492, 493.