Emile Weston, Jr. v. Maurice Sigler, Warden of the Louisiana State Penitentiary

262 F.2d 519, 1959 U.S. App. LEXIS 4558

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 16, 1959
• Docket: 17309
• Status: Published

Opinions

PER CURIAM.

Weston was convicted of aggravated rape in the district court and sentenced to death by electrocution. The Louisiana Supreme Court affirmed the sentence and Weston then filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Louisiana.

The district court denied the petition on the ground that Weston had failed to exhaust his state remedies prior to seeking federal relief. We affirm the district court. 28 U.S.C.A. § 2254; ¹ Johnson v. Wilson, 5 Cir., 1942, 131 F.2d 1; Morton v. Henderson, 5 Cir., 1941, 123 F.2d 48.

The order of the district court, staying the electrocution of Weston until remedies of appeal have been exhausted, will, however, remain in effect. 28 U.S.C.A. § 2251. The Court issues herewith a certificate of probable cause.I. ² 28 U.S.C.A. § 2253.

Affirmed.

1 . 28 U.S.C.A. § 2254 provides:

“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”

2 . The record before this Court did not contain, in terms, a certificate of probable cause from the district judge. The actions of the district judge, however, in effect amount to issuance of such a certificate. These actions are: (1) the issuance of a stay order “to remain in effect until remedies on appeal have been exhausted”; (2) the granting of leave to appeal in forma pauperis, with the provision that the United States pay the cost of transcript. The State of Lou- . isiana has not raised any question as to the issuance of a certificate of probable cause. To eliminate any uncertainty on this point, a majority of the Court, Judge Cameron dissenting, issue herewith a certificate of probable cause.