Russell v. Cherokee County District Court

1968 OK CR 45, 438 P.2d 293, 1968 Okla. Crim. App. LEXIS 294

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 21, 1968
• Docket: No. A-14548
• Status: Published

Opinion

BRETT, Judge.

On December 13, 1967 the petitioner herein filed in this Court a “Petition for writ of habeas corpus and/or post conviction appeal.”

The Attorney General has filed a demurrer to the petition filed, and it is our opinion that the same is well taken, and should be sustained.

Petitioner merely states that on October 26, 1967 he was sentenced by the district court of Cherokee County to serve two years in the state penitentiary, in case No. 2724, in which he entered a plea of guilty. He does not state the charge against him, but states that he employed an attorney of his own choice, who represented him at his arraignment, when he entered the plea of guilty, and at his sentencing.

His only grounds for release are that his attorney did not explain to him “the process of appealing”; and that he was denied bail after his return from the Eastern State Hospital; that he was denied the right to talk with his attorney; and that improper charges were filed.

It is fundamental that where a petition for writ of habeas corpus, or for post conviction appeal, is filed, the burden is upon the petitioner to sustain the allegations of his petition, and that every presumption favors the regularity of the proceedings had in the trial court. Error must affirmatively appear, and is never presumed.

We have carefully considered the petition filed herein, and find nothing to show that the judgment and sentence entered was void; and that no sufficient reason is given for a post conviction appeal.

The petitioner having failed to meet the burden of showing facts sufficient to entitle him to the writ of habeas corpus, the same is denied, and the petition for post conviction appeal is dismissed.

BUSSEY, J., concurs.