518 F.Supp. 1262 (M.D.Ga. 1981), Civ. A. 81-37, Westbrook v. Zant

Docket Nº:Civ. A. 81-37
Citation:518 F.Supp. 1262
Party Name:Westbrook v. Zant
Case Date:July 29, 1981
Court:United States District Courts, 11th Circuit, Middle District of Georgia
 
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Page 1262

518 F.Supp. 1262 (M.D.Ga. 1981)

Johnny Mack WESTBROOK, Petitioner,

v.

Walter B. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.

Civ. A. No. 81-37-MAC.

United States District Court, M.D. Georgia

July 29, 1981

Page 1263

Steven H. Sadow, Atlanta, Ga., for petitioner.

Harrison Kohler, Atlanta, Ga., for respondent.

ORDER

OWENS, Chief Judge.

On denial of habeas relief by this court petitioner filed his notice of appeal and, pursuant to 28 U.S.C.A. s 2253, applied for a certificate of probable cause to authorize appeal in forma pauperis of this court's judgment. By order dated July 10, 1981, petitioner was then instructed to inform the court within fifteen (15) days of exactly what merit existed in the appeal and to specifically state those constitutional questions raised by the appeal. A final determination concerning petitioner's application was withheld until this information could be considered by the court. The requested brief was submitted on July 24, 1981, and the court having carefully considered the arguments advanced in that brief, now makes a final determination on petitioner's application for a certificate of probable cause.

Petitioner's Brief In Support of Application For Certificate of Probable Cause to Authorize Appeal (Brief) does not attempt to reargue every allegation of the habeas petition, although petitioner naturally believes there to be merit to them all. Instead, petitioner attempts to "merely highlight a few of the substantial questions which he intends to address on appeal" (Brief p. 2) to wit: the Godfrey issue, the denial of funds for expert witnesses, the ineffective assistance of counsel and this court's refusal to allow presentation of evidence on behalf of petitioner.

As to the allegations of denial of funds for expert witnesses and ineffective assistance of counsel, no further consideration is necessary. As stated in the court's order of June 11, 1981, petitioner has received a full and fair hearing on the merits as to these claims and petitioner's most recent brief offers nothing that would suggest that this assessment be changed, nor that these allegations contain any arguable merit.

(1) In response to petitioner's allegation that this court improperly refused to allow the presentation of evidence based on its erroneous application of 28 U.S.C.A. s 2254(d), petitioner is referred to...

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