Opinion
No. 9214.
April 13, 1967.
John L. France, Aurora, Colo., for appellant.
John P. Moore, Denver, Colo. (Duke W. Dunbar and Frank E. Hickey, Denver, Colo., on brief), for appellee.
Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and CHRISTENSEN, District Judge.
Petitioner brings this appeal from an order of the Colorado trial court denying his petition for writ of habeas corpus for failure to exhaust available state remedies.
It appears from the petition and supporting brief that in August, 1965, the state trial court accepted Langdon's plea of Nolo Contendere to a charge of Criminal Non-Support and placed him on two years probation. Thereafter in May, 1966, his probation was revoked, and he was sentenced to serve not less than 2½ nor more than 5 years in the State Penitentiary of Colorado where he is presently confined. Petitioner was represented by counsel throughout these proceedings.
Thereafter, also with the assistance of counsel, Langdon filed in the state trial court his motion to vacate sentence pursuant to Rule 35(b) Colo.R.Crim.P., which was denied. No appeal was taken; instead he filed this petition for writ of habeas corpus in the federal court. Judge Chilson denied the petition without a hearing on the grounds that since petitioner had not sought review of his 35(b) motion by writ of error to the Colorado Supreme Court, he had not exhausted available state remedies. We agree. See Terry v. Patterson, 372 F.2d 480.