Stonefield v. Buchanan

Sixth Circuit

Stonefield v. Buchanan

124 F.2d 23, 1941 U.S. App. LEXIS 2417

CourtCourt of Appeals for the Sixth Circuit

DecidedNovember 12, 1941

DocketNo. 8936

StatusPublished

Cited by9 cases

This text of 124 F.2d 23 (Stonefield v. Buchanan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stonefield v. Buchanan, 124 F.2d 23, 1941 U.S. App. LEXIS 2417 (6th Cir. 1941).

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Opinion

SIMONS, Circuit Judge.

In an appeal from a judgment dismissing the appellant’s petition, for a writ of habeas corpus, which petition alleges that the appellant was convicted in a Kentucky court on an indictment charging the offense of armed robbery, that the conviction was the result of an inadequate allowance of time to assigned counsel for the purpose of preparing a defense and summoning witnesses who were out of the state or securing their depositions;

It appearing that though the appellant had filed an appeal from the judgment and sentence in the Court of Appeals of Kentucky, Stonefield v. Commonwealth, 282 Ky. 692, 139 S.W.2d 752; that the appeal proved abortive through his inability to furnish a transcript of the record owing to the fact that the evidence was not preserved by a reporter; yet,

It also appearing that the appellant had not further pursued remedies available to him under Kentucky law, including a petition for writ of habeas corpus to put in issue the legality of his conviction and sentence;

Now, therefore, for the reasons above stated which are fully developed in the considered opinion of the District Judge, and specifically upon the authority of Mooney v. Holohan, Warden, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406, expressly holding that a writ of habeas corpus will not lie to attack a state court judgment in the absence of a showing that such writ has been applied for in the state court, or that corrective judicial process is not there available, we follow the course pursued by this court in the case of Howard M. Sharpe, Appellant v. W. Jess Buchanan, Warden, 121 F.2d 448, decided by memorandum opinion on June 6, 1941; wherefore,

It is ordered that the judgment below be, and it is, hereby affirmed without prejudice to the appellant’s recourse to any state judicial remedy that may still remain open to him.

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SIMONS, Circuit Judge.

In an appeal from a judgment dismissing the appellant’s petition, for a writ of habeas corpus, which petition alleges that the appellant was convicted in a Kentucky court on an indictment charging the offense of armed robbery, that the conviction was the result of an inadequate allowance of time to assigned counsel for the purpose of preparing a defense and summoning witnesses who were out of the state or securing their depositions;

It appearing that though the appellant had filed an appeal from the judgment and sentence in the Court of Appeals of Kentucky, Stonefield v. Commonwealth, 282 Ky. 692, 139 S.W.2d 752; that the appeal proved abortive through his inability to furnish a transcript of the record owing to the fact that the evidence was not preserved by a reporter; yet,

It also appearing that the appellant had not further pursued remedies available to him under Kentucky law, including a petition for writ of habeas corpus to put in issue the legality of his conviction and sentence;

Now, therefore, for the reasons above stated which are fully developed in the considered opinion of the District Judge, and specifically upon the authority of Mooney v. Holohan, Warden, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406, expressly holding that a writ of habeas corpus will not lie to attack a state court judgment in the absence of a showing that such writ has been applied for in the state court, or that corrective judicial process is not there available, we follow the course pursued by this court in the case of Howard M. Sharpe, Appellant v. W. Jess Buchanan, Warden, 121 F.2d 448, decided by memorandum opinion on June 6, 1941; wherefore,

It is ordered that the judgment below be, and it is, hereby affirmed without prejudice to the appellant’s recourse to any state judicial remedy that may still remain open to him.

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124 F.2d 23, 1941 U.S. App. LEXIS 2417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stonefield-v-buchanan-ca6-1941.

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