Robert Draper v. B. J. Rhay, Superintendent, Washington State Penitentiary

310 F.2d 691, 1962 U.S. App. LEXIS 3637

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 15, 1962
• Docket: 17802_1
• Status: Published

Opinion

PER CURIAM.

This appeal is taken from judgment of' the District Court for the Eastern District of Washington, Southern Division,, denying appellant’s application in the alternative for a writ of coram nobis or of' habeas corpus.

Under attack is the validity of a sentence of imprisonment. Appellant had' sought a writ of coram nobis from the-Superior Court of the State of Washington in and for Yakima County, the sentencing court. That court had denied relief upon the ground that eoram nobis would not issue where habeas corpus was available; that only the Supreme-Court of Washington or the Superior-Court of Walla Walla County, within, which appellant was imprisoned, had ha-beas corpus jurisdiction of the case.

Appellant has never put the Yakima court’s theory to the test. Habeas corpus has never been sought in the state-courts of Washington-. Nor do we understand that the Yakima court’s doors-; are closed on coram- nobis, should appellant fail to secure- habeas corpus, since-that court never reached' the merits upon - the coram nobis question;

Under these circumstances, the District Court below, in denying appellant relief, did so upon the ground that he had failed to exhaust his state remedies.

We agree.

Judgment affirmed.