Fred Joe Boyd v. State of Oklahoma

Tenth Circuit

Fred Joe Boyd v. State of Oklahoma

375 F.2d 481, 1967 U.S. App. LEXIS 6858

CourtCourt of Appeals for the Tenth Circuit

DecidedApril 5, 1967

Docket9207_1

StatusPublished

Cited by14 cases

This text of 375 F.2d 481 (Fred Joe Boyd v. State of Oklahoma) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fred Joe Boyd v. State of Oklahoma, 375 F.2d 481, 1967 U.S. App. LEXIS 6858 (10th Cir. 1967).

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Opinion

PER CURIAM.

Boyd, a state prisoner, appeals from an order denying his petition for a writ of habeas corpus without an evidentiary hearing. He was sentenced on a plea of guilty to a charge of second degree burglary. He neither appealed nor presented a petition for a writ of habeas corpus to the courts of the State of Oklahoma.

Counsel for appellant, mindful that 28 U.S.C. § 2254 requires a state pris'oner to 'exhaust available state remedies, argues that such remedies are ineffective because Oklahoma courts have infrequently granted relief under circumstances similar to the case at bar. Probability of success is not the test for determining the adequacy of state remedies. The fact that the issue may be determined contrary to the contentions of Boyd does not establish any ground for questioning the adequacy or effectiveness of the remedy provided for the presentation and determination of that issue. Williams v. United States, 283 F.2d 59 (10th Cir. 1960), cert. denied 361 U.S. 842, 80 S.Ct. 91, 4 L.Ed.2d 80. Here the state proyides a suitable procedure for considering the issues herein presented but the appellant has deliberately chosen to by-pass them and seek relief in the federal courts. This he cannot do. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

No disputed factual issue is presented here and the application on its face affirmatively shows that appellant was not entitled to federal habeas corpus relief. Accordingly, it was not error to refuse a hearing. Orrie v. United States, 302 F.2d 695 (8th Cir. 1962), cert. denied 371 U.S. 864, 83 S.Ct. 124, 9 L.Ed.2d 101; Putnam v. United States, 337 F.2d 313 (10th Cir. 1964).

Affirmed.

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PER CURIAM.

Boyd, a state prisoner, appeals from an order denying his petition for a writ of habeas corpus without an evidentiary hearing. He was sentenced on a plea of guilty to a charge of second degree burglary. He neither appealed nor presented a petition for a writ of habeas corpus to the courts of the State of Oklahoma.

Counsel for appellant, mindful that 28 U.S.C. § 2254 requires a state pris'oner to 'exhaust available state remedies, argues that such remedies are ineffective because Oklahoma courts have infrequently granted relief under circumstances similar to the case at bar. Probability of success is not the test for determining the adequacy of state remedies. The fact that the issue may be determined contrary to the contentions of Boyd does not establish any ground for questioning the adequacy or effectiveness of the remedy provided for the presentation and determination of that issue. Williams v. United States, 283 F.2d 59 (10th Cir. 1960), cert. denied 361 U.S. 842, 80 S.Ct. 91, 4 L.Ed.2d 80. Here the state proyides a suitable procedure for considering the issues herein presented but the appellant has deliberately chosen to by-pass them and seek relief in the federal courts. This he cannot do. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

No disputed factual issue is presented here and the application on its face affirmatively shows that appellant was not entitled to federal habeas corpus relief. Accordingly, it was not error to refuse a hearing. Orrie v. United States, 302 F.2d 695 (8th Cir. 1962), cert. denied 371 U.S. 864, 83 S.Ct. 124, 9 L.Ed.2d 101; Putnam v. United States, 337 F.2d 313 (10th Cir. 1964).

Affirmed.

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Bluebook (online)

375 F.2d 481, 1967 U.S. App. LEXIS 6858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fred-joe-boyd-v-state-of-oklahoma-ca10-1967.

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