Curtis M. Simpson, Warden, Kilby Prison, Montgomery, Alabama, Appellant, v. William S. Rice, Appellee, 396 F.2d 499 (5th Cir. 1968)

William S. Rice in February, 1962, entered pleas of guilty in four separate criminal cases in the Circuit Court of Pike County, Alabama. He was sentenced to a total of ten years in the state penitentiary, the term consisting of four separate sentences, the first for four years and the remaining three for two years each. In August, 1964, the judgments and sentences in these cases were set aside by the Circuit Court of Pike County in a corum nobis proceeding on the ground that appellee was not represented by counsel at the time of his original pleas.

The petition for habeas corpus to the District Court alleged that the appellee was retried in three of the four cases at which time the same trial court sentenced him to a total of twenty-five years, the term consisting of a sentence of ten years on each of the first two charges and five years on the third. The fourth charge was dismissed because of the absence of a witness. Rice attacked these subsequent sentences to the extent that they exceeded the original sentences on the original pleas of guilty and to the extent that they did not also give him credit for the time served under the vacated sentences.

The trial court overruled the State's motion to dismiss the petition for failure to exhaust state remedies, there being at the time of the hearing no adequate state procedure which the appellee was required to pursue. Although an intervening decision by the Court of Appeals of Alabama, Goolsby v. State, Sixth Division 202 (not reported) might have some bearing on the merits of this case, under the principles of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, we should not remand the case to require the appellee to pursue a state remedy at this stage of the proceedings.

The District Court entered a judgment granting the relief sought by the appellee. It would be useless for us to add to the reasoning or conclusions announced by the trial court whose opinion may be found at 274 F. Supp. 116. We, therefore, affirm the judgment of the trial court on the basis of Judge Johnson's opinion which is adopted as the opinion of this court.

The judgment is affirmed.