Burns v. State of Alabama

• Decision Date: 12 May 1966
• Docket Number: No. 22754.,22754.
• Citation: 360 F.2d 608
• Parties: Timothy BURNS, Appellant, v. STATE OF ALABAMA, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.2d 608 (1966)

Timothy BURNS, Appellant, v. STATE OF ALABAMA, Appellee.

No. 22754.

United States Court of Appeals Fifth Circuit.

May 12, 1966.

Timothy Burns, pro. se.

Richmond M. Flowers, Atty. Gen., John C. Tyson, III, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and LYNNE, District Judge.

LYNNE, District Judge:

Appellant, an indigent Alabama state convict, filed a petition for writ of habeas corpus on February 17, 1965, in the District Court for the Southern District of Alabama alleging that he was not effectively represented by court-appointed counsel on May 13, 1957, when he was tried and convicted of robbery and sentenced to life imprisonment. He also alleged that he had previously petitioned for coram nobis relief in the state courts but that the petition had been denied. The district court denied the writ without a plenary hearing and without requiring a return in behalf of the State of Alabama. The lower court also denied the appellant's motion for certificate of probable cause. Thereafter, this court granted the appellant a certificate of probable cause and leave to appeal in forma pauperis.

Subsequent to the granting of leave to appeal, appellee filed a motion to dismiss the appeal on the ground that the appellant had failed to exhaust his state court remedies. We ordered that the motion to dismiss be carried with the case. Thus, there are two questions before this court: (i) whether appellant has failed to exhaust his state remedies, and (ii) whether appellant was effectively represented by counsel in the state court proceedings.

With respect to the first question, the record indicates that appellant did petition for coram nobis relief and that the petition was denied on January 15, 1965. Appellee maintains that appellant has not exhausted his state remedies in that he has yet to appeal the denial of that petition.

Under the law of Alabama, an indigent has ten days after the entry of an order denying coram nobis relief in which to apply for a free transcript for appeal. Code of Alabama, tit. 15 § 380 (14)-380(25) (1940) (Recomp. 1958). In the instant case, the order denying coram nobis relief was entered on January 15, 1965; appellant did not apply for a free transcript within the prescribed period. Thus, for all practical purposes, appellant had no available state remedy after January 25, 1965.

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), it was held that the failure of a person to avail himself of a state court remedy was not a bar to obtaining federal habeas corpus relief where the state remedy was not available at the time the petition for habeas corpus was filed. The Court added, however, that "the federal habeas judge may in his discretion deny relief to the appellant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." 372 U.S. at 438, 83 S.Ct. at 849.

In this case, the appellant filed his petition for habeas corpus relief on February 17, 1965. Thus, there was in essence no available state remedy at the time of the filing of such petition. The district court made no finding that the appellant had deliberately by-passed the appellate procedure of the Alabama state courts. This court therefore concludes that appellee's contention that appellant has not exhausted his state remedies in that he has yet to appeal the denial in the coram nobis proceeding is without merit.

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