Opinion
No. 15662.
August 27, 1964.
Jacob K. Stein (court appointed), Cincinnati, Ohio, for appellant.
John A. Curtis, on brief, Marquette, Mich., in pro. per.
James R. Ramsey, Lansing, Mich., Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald T. Kane, Asst. Atty. Gen., Lansing, Mich., on brief, for appellee.
Before WEICK, Chief Judge, and PHILLIPS and EDWARDS, Circuit Judges.
ORDER AFFIRMING JUDGMENT OF THE DISTRICT COURT.
Appellant was convicted by a jury on June 15, 1949, in the Recorder's Court for the City of Detroit, of the offense of armed robbery, and is presently serving his sentence in a Michigan State Prison.
The petition for writ of habeas corpus was dismissed by the District Court for the Western District of Michigan, Northern Division, on the ground that appellant has not exhausted his remedies in the state courts of Michigan.
At the time of his conviction, appellant had a right under Michigan law to file a delayed application to appeal to the Supreme Court of Michigan without limitation of time. This right of delayed appeal to the Supreme Court of Michigan remains available to appellant at the present time under the new General Court Rule 806.4(2) of that Court. Hampton v. Buchkoe, 334 F.2d 6 (C.A. 6). Appellant therefore has available to him a remedy in the state courts, which he has not exhausted. 28 U.S.C. § 2254.
It is ordered that the decision of the District Court be and hereby is affirmed.
The Court expresses appreciation to Mr. Jacob K. Stein of the Cincinnati Bar who represented appellant ably as court-appointed counsel on the appeal in this case.