249 F2d 650 Johnson v. E H Tucker

249 F.2d 650

Nathan JOHNSON, Petitioner, Appellant,
E. H. TUCKER, Warden, west Virginia Penitentiary,
Respondent, appellee.

No. 7477.

United States Court of Appeals Fourth Circuit.

Argued Nov. 7, 1957.
Decided Nov. 25, 1957.

Mathias J. DeVito, Baltimore, Md. (Court appointed counsel) for appellant. Nathan Johnson, pro se, on the brief.

W. Bernard Smith, Asst. Atty. Gen. of West Virginia (W. W. Barron, Atty. Gen. of West Virginia, on brief), for appellee.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit judges.


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This is an appeal from an order dismissing a petition for a writ of habeas corpus by a prisoner serving a life sentence imposed by a state court of West Virginia. The questions raised by the petition are the same as those passed upon by the Supreme Court of Appeals of West Virginia in State ex rel. Nathan Johnson v. Skeen, 140 W.Va. 896, 87 S.E.2d 521, certiorari denied351 U.S. 956, 76 S.Ct. 854, 100 L.Ed. 1478, where the facts are fully stated. We are bound by the interpretation placed by the courts of West Virginia upon the statutes of that state; and in the light of the interpretation placed by that court upon the statutes involved, there is no merit in the contention that appellant has not been thrice convicted of crimes punishable by imprisonment in the penitentiary and therefore punishable under the Habitual Criminal Act of West Virginia, Code, 61-11-18, 61-11-19. The District Judge properly refused to issue a writ of habeas corpus when appellant's contentions had been adequately considered and authoritatively decided by the Supreme Court of the state. Brown v. Allen, 344 U.S. 443, 465, 73 S.Ct. 397, 97 L.Ed. 469. The appeal must be dismissed for lack of the certificate of probable cause required by 28 U.S.C. 2253; but we may add that, for the reasons here stated, appellant was not and is not entitled to such certificate as his appeal is entirely without merit.


Appeal dismissed.