Davis v. Smyth

167 F.2d 221, 1948 U.S. App. LEXIS 2425

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 23, 1948
• Docket: No. 5714
• Status: Published

Opinion

PER CURIAM.

This is an appeal from an order of the United States District Court for the Eastern District of Virginia denying a writ of habeas corpus to the appellant. Appellant, Willie Davis, is being held in the custody of appellee under sentences of the codrts of the State of Virginia for housebreaking, felonious assault with deadly weapons and three separate sentences for escapes.

Appellant, in March, 1945, filed in the Law and Equity Court for the City of Richmond, Virginia, a petition for a writ of habeas corpus. A rule to show cause was issued, affidavits and counter-affidavits were filed, oral argument was had. This court later discharged the rule to show cause and declined to issue the writ on the ground “that the petitioner has failed to show probable cause to believe that he is detained without lawful authority.”

The Supreme Court of Appeals of Virginia denied an application for a writ of error and affirmed the judgment below with a recital: “the judgment * * * having been maturely considered and a transcript of the record seen and inspected, the Court being of opinion that the said judgment is plainly right, * *

Davis, then, without seeking certiorari from the United States Supreme Court, filed a petition for habeas corpus in the United States District Court for the Eastern District of Virginia.¹ There was a rule to show cause, then a motion to dismiss, which was granted on the ground that Davis had not exhausted his state remedies since he had not sought certiorari from the United States Supreme Court to review the action of the State Courts of Virginia. Upon appeal to us from this decision, the judgment of the District Court was affirmed. Davis v. Smyth, 4 Cir., 155 F.2d 3.

Next, Davis filed a petition for a writ of habeas corpus in the Supreme Court of Appeals of Virginia. After a rule to show cause, that Court, on June 6, 1946, dismissed the petition. Davis then applied to the United States Supreme Court for a writ of certiorari and this application was, on December 6, 1946, denied. Davis v. Smyth, 329 U.S. 789, 67 S.Ct. 353.

In October, 1947, Davis filed his petition for habeas corpus in the United States District Court for the Eastern District of Virginia, this petition being identical with the petition dismissed by the Supreme Court of Appeals of Virginia on June 6, 1946. On October 29, 1947, the District Court dismissed this petition. The case is before us on appeal from this order of dismissal by the District Court.

This recital makes it clear that (including the instant appeal) applications for habeas corpus on the part of Davis have been once before the United States Supreme Court, twice before the Supreme Court of Appeals of Virginia, twice before us, twice before the United States District Court for the Eastern District of Virginia and once before the Law and Equity Court of the City of Richmond, Virginia.

The judgment of the District Court is affirmed on the authority of White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Stonebreaker v. Smyth, 4 Cir., 163 F.2d 498; Bernard v. Brady, 4 Cir., 164 F.2d 881; and Edmondson v. Swenson, 4 Cir., 165 F.2d 432.

Affirmed.

1 65 F.Supp. 313.