SHARPE v. BUCHANAN 317 U.S. 238 (1942)

Mr. Howard M. Sharpe, pro se.

No appearance for respondent.

PER CURIAM.

The motion for leave to proceed in forma pauperis is granted and the petition for certiorari is also granted. It appears from the record that after a hearing the district court denied an application for habeas corpus filed by petitioner, who is confined in a state penitentiary pursuant to a judgment of conviction of a state court. The circuit court of appeals affirmed the district court's order, 6 Cir., 121 F.2d 448, on the sole ground that petitioner had not exhausted his state remedies by applying to the state courts for habeas corpus, although an application for a writ of error coram nobis had previously been denied by the Kentucky Court of Appeals. Sharpe v. Commonwealth, 284 Ky. 88, 143 S.W.2d 857. The circuit court of appeals denied a petition for rehearing, 133 F.2d 100, when it appeared that an application for habeas corpus, filed in a state court after the circuit court of appeals had rendered its judgment, was still pending on appeal in the [317 U.S. 238, 239]   Kentucky Court of Appeals. After the petition for certiorari was filed here, the Kentucky Court of Appeals affirmed the state court's order denying habeas corpus. Sharpe v. Commonwealth, Ky., 165 S.W.2d 993, decided November 13, 1942. It thus appears that this obstacle to a consideration of the merits of petitioner's application, which the circuit court of appeals encountered, has now been removed. The judgment is therefore vacated, without costs, and the cause remanded to the circuit court of appeals for such further proceedings as it may deem appropriate.

So ordered.

Judgment vacated.