Before DUFFY, Chief Judge, and FINNEGAN and KNOCH, Circuit Judges.
In granting motion of the respondent-appellee to dismiss petition for Writ of Habeas Corpus, the District Court noted that the petition sought to be dismissed showed on its face that the petitioner had failed to exhaust the state procedural remedies available to him, in that he had failed to petition the state courts for a writ of error coram nobis.
Petitioner-appellant asserts that his detention was imposed in violation of his right to due process and equal protection under the U.S. Constitution.
He argues that writ of error coram nobis is not available to him in Indiana because the constitutional questions raised by him are based on facts spread on the record of proceedings.
One of the questions raised by petitioner-appellant concerns the competence of Indiana court-appointed appellate counsel who is alleged to have waived the bulk of the errors relied upon by petitioner-appellant and to have imperfectly briefed the others.
As the court-appointed appellate counsel in Indiana is charged largely with sins of omission, the facts in this respect would appear, not from their presence in the record, but only by inference from their absence.
Respondent-appellee contends that petitioner-appellant has failed to show that writ of error coram nobis is not an available state remedy in this situation. This position appears sound.
We desire to express the court's appreciation for the able and intelligent presentation made in written briefs and oral argument by Mr. Patrick W. O'Brien, a member of the Chicago Bar, appointed to represent the petitioner-appellant in this court.
We find no error in the action of the District Court in dismissing the petition.
FINNEGAN, Circuit Judge (concurring).
This is one of those deceptively simple appearing appeals from which tangled issues will persistently dangle unless they are bared for judicial examination. Randolph, a state prisoner, was represented by counsel during his trial in an Indiana court for felony-murder, and after his conviction, but before his appeal was perfected, his trial attorney withdrew from the case.
Another attorney was appointed by the Indiana trial court to prosecute Randolph's appeal to the Indiana Supreme Court which, on review, affirmed the conviction. Randolph v. State, 1954, 234 Ind. 57, 122 N.E.2d 860, Judge Gilkerson, dissenting. Since the matter reaches us in the framework of law underlying the writ of habeas corpus I point out in light of Darr v. Burford, 1950, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761, and Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, that ...