A. C. Brumfield, Jr., Appellant, v. Honorable W. S. Carrothers, Justice of the Peace, District 5, Sunflower County, Mississippi, et al., Appellees, 350 F.2d 318 (5th Cir. 1965)

BY THE COURT:

It is ordered that the relief sought by appellant's motion is hereby denied.

It clearly appearing from the record before this Court that the appellant has not exhausted state remedies or disclosed any reason for not doing so, the judgment of the district court is

Affirmed.

TUTTLE, Chief Judge (dissenting):

With deference to the views of my colleagues, I can not agree that any State remedy is available to this movant to test out the legality of his detention under a judgment of conviction by a Justice of the Peace whose compensation is derived from costs in those cases in which judgments of guilty are entered. It seems to me that the fact that there is a de novo trial upon appeal in the Circuit Court can not give validity to detention in the meantime that is justified solely by the judgment entered by the Justice's court.

As to the suggestion that a habeas corpus petition might be available in the State courts, I can only say that the Supreme Court of Mississippi has rejected this idea in Hitt v. State, 149 Miss. 718, 115 So. 879, where the Court found that a conviction by a Justice of the Peace under the circumstances here present does not violate the Federal Constitution, and also said, "Hitt would not have been entitled to a writ of habeas corpus to secure his liberty." I do not think that we should speculate that the State court might now reverse its previous views, and, on this speculation, conclude that an effective remedy is available.

Rehearing denied; Tuttle, Chief Judge, dissents.