John C. Fulford, Appellant, v. A. L. Dutton, Warden, Georgia State Prison, Appellee, 380 F.2d 16 (5th Cir. 1967)

Appellant was tried and convicted of robbery with an offensive weapon. Although the jury recommended that the crime be treated as a misdemeanor, the trial judge refused to act upon that recommendation and sentenced appellant to serve ten years in the Georgia penitentiary. The conviction was affirmed by the Georgia Supreme Court. Appellant's petition for a writ of habeas corpus was denied by the Georgia courts. Appellant has exhausted his state remedies.

Appellant filed a petition for a writ of habeas corpus with the District Court. After holding an evidentiary hearing the District Court denied the petition from which this appeal was taken. We affirm.

Appellant attacks the sufficiency and admissibility of the evidence offered to convict him. This is unavailing because insufficiency of the evidence is not reviewable by writ of habeas corpus in the federal courts. Fernandez v. Klinger, 9 Cir. 1965, 346 F.2d 210, 211. Appellant also contends that he is innocent and could establish an alibi through certain records located in Alabama. However, innocence is not a proper matter for consideration in a habeas corpus proceeding. Palakiko v. Harper, 9 Cir. 1953, 209 F.2d 75, 95.

Appellant further urges that the trial judge erred in setting a ten year sentence instead of following the jury's recommendation. The law in Georgia provides that "it is in the `discretion of the trial judge whether he will approve such recommendation, and his action in the matter is final.' * * *" Harris v. Georgia, 216 Ga. 740, 119 S.E.2d 352.

Affirmed.