McCoy v. Newsome, Civ. A. No. 85-30-VAL.

• Decision Date: 23 January 1986
• Docket Number: Civ. A. No. 85-30-VAL.
• Citation: 626 F. Supp. 374
• Parties: Henry Lee McCOY, Petitioner, v. Lanson NEWSOME, Respondent.
• Court: U.S. District Court — Middle District of Georgia

626 F. Supp. 374

Henry Lee McCOY, Petitioner, v. Lanson NEWSOME, Respondent.

Civ. A. No. 85-30-VAL.

United States District Court, M.D. Georgia, Valdosta Division.

January 23, 1986.

Henry Lee McCoy, pro se.

Susan V. Boleyn, Atlanta, Ga., for respondent.

ORDER

OWENS, Chief Judge.

Henry Lee McCoy, who is confined in the Georgia State Prison in Reidsville, Georgia, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254. He challenges his 1982 conviction in the Superior Court of Tift County, Georgia. Petitioner raises eleven grounds of error:

(1) denial of the right to fully present his habeas corpus claims in the state courts;

(2) his attorney's refusal to strike three jurors after petitioner requested his attorney to do so;

(3) his attorney's refusal to subpoena seven witnesses whom petitioner asked his attorney to subpoena;

(4) trial court's refusal to suppress a statement that was unconstitutionally obtained and his attorney's failure to submit evidence on involuntariness of the statement;

(5) ineffective assistance of counsel at trial;

(6) trial court incorrectly charged the jury on the recidivist count of the indictment;

(7) insufficient evidence to sustain the conviction on the recidivist count and obtaining the conviction on the recidivist count without first obtaining an indictment from the grand jury;

(8) trial court improperly admitted into evidence copies of petitioner's prior felony convictions and sentences;

(9) unconstitutional indictment on the recidivist count;

(10) denial of the right to appellate review of his conviction because of an incomplete trial transcript; and

(11) ineffective assistance of counsel on appeal in that his appointed counsel withdrew from the case on appeal.

The respondent has filed a motion to dismiss the petition on the ground that petitioner failed to exhaust state remedies as to some of his allegations of error. Federal law states that an application for a writ of habeas corpus shall be denied unless the applicant has exhausted the available state remedies. 28 U.S.C.A. § 2254(b) (West 1977). Furthermore, a petition that contains both exhausted and unexhausted claims must be dismissed. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). The issue before the court, therefore, is whether any of petitioner's allegations of error have not been exhausted in the Georgia state courts.

Petitioner was represented at trial by a court-appointed attorney, David E. Perry. The attorney filed a timely notice of appeal on petitioner's behalf in the Court of Appeals of Georgia. The attorney subsequently filed a motion to withdraw as counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders Court set forth the procedure that a court-appointed attorney must follow in the first appeal from a criminal conviction when the attorney has determined that there is no merit to the appeal:

If counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498 (emphasis added)...