FRED JOE BOYD, APPELLANT,
v.
STATE OF OKLAHOMA, APPELLEE
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A state prisoner must exhaust available state remedies before seeking federal habeas corpus relief, and the mere possibility of an unfavorable outcome in state court does not render the remedy inadequate.
Boyd, a state prisoner, pleaded guilty to second-degree burglary and sought federal habeas corpus relief without first petitioning the Oklahoma courts…
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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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Wilwording v. Swenson, 439 F.2d 1331 (8th Cir. 1971)
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Lucas v. People OF the State OF Mich., 420 F.2d 259 (6th Cir. 1970)
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- FAY v. Noia, 372 U.S. 391 (U.S. 1963)
- Cleveland Roy Williams v. United States, 283 F.2d 59 (10th Cir. 1960)
- Putnam v. United States, 337 F.2d 313 (10th Cir. 1964)
- Duncan v. Holder, 371 U.S. 864 (U.S. 1962)
- Orrie v. United States, 302 F.2d 695 (8th Cir. 1962)
- Jones v. United States, 371 U.S. 864 (U.S. 1962)
- Williams v. United States, 361 U.S. 842 (U.S. 1959)
- Marinaccio v. New York, 361 U.S. 842 (U.S. 1959)