Opinion
No. 8111.
May 28, 1965.
Tosh Suyematsu, Cheyenne, Wyo., for appellant.
Richard H. Seaton, Asst. Atty. Gen. of Kansas, Topeka, Kan. (Robert C. Londerholm, Atty. Gen. of Kansas, with him on the brief), for appellee.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
The trial court denied without hearing the petition of appellant, a state prisoner, for federal habeas corpus. The sole ground for relief is the alleged denial by the Kansas Supreme Court of a speedy hearing on appellant's appeal to that court. Such appeal was filed on August 11, 1964, and was set for hearing on May 10, 1965. At the oral argument before us, counsel for appellee stated, and counsel for appellant did not deny, that the hearing was continued on the motion of appellant. In the circumstances, federal habeas corpus is not available because appellant has not exhausted the remedies available in the state courts. See 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 435, 83 S. Ct. 822, 9 L.Ed.2d 837; Ex Parte Davis, 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868; Henry v. Tinsley, 10 Cir., 344 F.2d 109, decided April 12, 1965. The claim of denial of equal protection because of the delay deserves no consideration because it is neither alleged nor shown that the Kansas Supreme Court has in any way discriminated against appellant in its procedural actions.
Affirmed.