284 F.2d 678 | 6th Cir. | 1960
Benjamin F. RAYBORN, Appellant,
v.
William L. JONES, Warden, Kentucky State Penitentiary, Appellee.
No. 14248.
United States Court of Appeals Sixth Circuit.
Dec. 28, 1960.
Benjamin F. Rayborn, in pro. per., for appellant.
John B. Breckinridge, Atty. Gen., William E. Biven, Asst. Atty. Gen., for Appellee.
Before SIMONS, Senior Circuit Judge, and CECIL and WEICK, Circuit judges.
PER CURIAM.
This is an appeal from an order of the District Court denying appellant's application for a writ of habeas corpus. On motion of the appellant the case was submitted to the Court on the briefs without oral argument. The facts are stated in our opinion in the case of Rayborn v. Jones, 6 Cir., 1960, 282 F.2d 410. We there held that mandamus in the Federal Court was not the proper remedy to prevent a state officer from performing duties imposed upon him by state law and that appellant's petition for mandamus could not be treated as one for habeas corpus because he had not exhausted his state remedies. It appears from the record in the present case that appellant did file a habeas corpus petition in the Circuit Court of Lyon County, Kentucky which was denied; that he made some attempt to appeal to the Court of Appeals of Kentucky but did not perfect his appeal. He, therefore, has not exhausted his state remedies.
The judgment of the District Court is, therefore, affirmed.