William SMITH, Jr., Petitioner, v. STATE OF MISSISSIPPI.

373 U.S. 238 (83 S.Ct. 1265, 10 L.Ed.2d 321)

William SMITH, Jr., Petitioner, v. STATE OF MISSISSIPPI.

No. 667.

Argued: April 30, 1963.

Decided: May 13, 1963.

Morris B. Abram. Atlanta, Ga., for petitioner.

G. Garland Lyell, Jr., Jackson, Miss., for respondent.

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PER CURIAM.

The petitioner was convicted of rape by a jury in the Circuit Court of Madison County, Mississippi, and sentenced to death. The conviction was affirmed by the Supreme Court of Mississippi. Miss., 139 So.2d 857. We granted petitioner's motion for leave to proceed in forma pauperis, and his petition for certiorari which presented several claims of alleged denial of rights secured to him by the Fourteenth Amendment. 371 U.S. 939, 83 S.Ct. 323, 9 L.Ed.2d 274. After oral argument and study of the record, we have reached the conclusion that the record is not sufficient to permit decision of his constitutional claims. The writ is therefore dismissed as improvidently granted, without prejudice to an application for federal habeas corpus relief under 28 U.S.C. 2241 after exhaustion of any state remedies still open to him. See 28 U.S.C. 2254; Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837.

Upon the effective date of our action today, the stay of execution granted October 5, 1962, by MR. JUSTICE BLACK expires of its own terms. We see no reason, however, to continue the stay in effect. Although the Mississippi Supreme Court, see Miss., 145 So.2d 688, reserved to the State the right, upon this Court's disposition of the writ of certiorari, to apply for an order fixing a new execution date, we assume that that court will not act on application of the State without affording petitioner an opportunity to pursue with due diligence any available state remedies and, if necessary, the remedy in federal habeas corpus.

Writ dismissed.

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