James Burney Cook, Plaintiff-appellant, v. S. Lamont Smith, Warden, Georgia State Prison, Defendant-appellee, 427 F.2d 1172 (5th Cir. 1970)

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US Court of Appeals for the Fifth Circuit - 427 F.2d 1172 (5th Cir. 1970) June 17, 1970

James Burney Cook, pro se.

Floyd Buford, Byrd, Groover & Buford, Macon, Ga., for appellant.

Arthur K. Bolton, Atty. Gen. of Georgia, Atlanta, Ga., for appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.


Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing.

Appellant, James Burney Cook, was convicted of two counts of burglary on November 24, 1965. The conviction was affirmed on appeal, Cook v. State, 116 Ga.App. 304, 157 S.E.2d 160. This habeas corpus proceeding, begun on April 6, 1969, is the appellant's second. In the first such proceeding filed March 4, 1968, relief was denied.

The grounds asserted are (1) that the warrantless search of appellant's automobile which disclosed incriminating evidence violated appellant's Fourth Amendment rights, and (2) that the use of appellant's three prior convictions in a one step proceeding under the Georgia enhancement statute, Georgia Code Ann., § 27-2511, violates the Fourteenth Amendment.

We affirm the denial of the petition on the basis of Judge Lawrence's published opinion, Cook v. Smith, 303 F. Supp. 90 (S.D. Ga., 1969).