Phil Whitus, Appellant, v. R. P. Balkcom, Warden, Georgia State Penitentiary, Appellee, 299 F.2d 844 (5th Cir. 1962)

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US Court of Appeals for the Fifth Circuit - 299 F.2d 844 (5th Cir. 1962) February 26, 1962Rehearing Denied April 11, 1962

P. Walter Jones, Albany, Ga., W. R. Harrell, Macon, Ga., for appellant.

Julian Eugene Cook, Atty. Gen., Howard P. Wallace and Earl L. Hickman, Asst. Attys. Gen., for appellee.

Before HUTCHESON, CAMERON, and GEWIN, Circuit Judges.


This is an appeal from an order of the United States District Court for the Southern District of Georgia dismissing a petition for writ of habeas corpus.

Appellant is held under a sentence of death by electrocution imposed in a state court of Georgia for aiding and abetting one Leon Davis in the killing of Peter Glenn. The conviction was affirmed by the Supreme Court of Georgia on September 12, 1960, 216 Ga. 284, 116 S.E.2d 205. Justices Duckworth, Head and Quillian dissented. On February 27, 1961, the United States Supreme Court denied certiorari. 365 U.S. 831, 81 S. Ct. 718, 5 L. Ed. 2d 708. Our disposition of this appeal renders unnecessary reaching the merits of the petition, which alleges deprivation of constitutional rights in the state trial.

The district judge, after a hearing, denied the petition for habeas corpus on the ground that petitioner had not exhausted his state remedies, as required by 28 U.S.C. § 2254. Here the appellant argues that the habeas corpus remedy provided by 50-101 of the Georgia Code was not available to him.

The district judge, quoting from Wells v. Pridgen, 154 Ga. 397 at p. 400, 114 S.E. 355 at p. 357: "It may be said that a judgment denying to a prisoner a constitutional right is void, and he may be discharged on habeas corpus", held that the petitioner did have a state remedy and that he had not exhausted it and, so holding, dismissed the motion.

Finding ourselves in full agreement with the district judge's view, we affirm his judgment.