John E. Kirby appeals from an order of the District Court dismissing without a hearing his petition for a writ of habeas corpus. Kirby is a state prisoner now serving two consecutive sentences of twenty years each in the Maryland Penitentiary on two charges of armed robbery.
The complaint is that his confinement is unconstitutional because in passing sentence the trial judge was “motivated by matters not of record.” To substantiate this claim the petitioner relies on a statement made by the state judge in passing sentence: “ * * * I am per *152 fectly satisfied that you are not being tried for the only ones [holdups] that you perpetrated, * * The petitioner also points to the fact that the judge alluded to him as a “holdup artist.”
te State makes two countercontentions. The first is procedural, namely, that the petitioner has not exhausted his state remedies. The second, on the merits, is that viewed in context the judge’s statements did not infect the proceedings with such fundamental unfairness as to render them unconstitutional.
First, as to the exhaustion issue, it appears that the judge’s statements were set forth as a grievance in the petitioner’s brief in a delayed appeal to the Court of Appeals of Maryland, Kirby v. State,
On the merits, however, the State must prevail. The observations of the judge, viewed most unfavorably— as unsupported by evidence and hence improper — could not be deemed so extreme as to convert the proceedings into a nullity. Federal courts do not exercise a general supervisory authority over state courts, and they have no jurisdiction to correct errors less than fundamental in a constitutional sense. Compare Cicenia v. La Gay,
Affirmed,