Walker v. Zant

• Decision Date: 16 December 1982
• Docket Number: No. 82-8226,82-8226
• Citation: 693 F.2d 1087
• Parties: Henry WALKER, Plaintiff-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1087

693 F.2d 1087

Henry WALKER, Plaintiff-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification

Center, Defendant-Appellee.

No. 82-8226

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Dec. 16, 1982.

Henry Walker, pro se.

Michael J. Bowers, Atty. Gen., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Henry Walker is currently an inmate of the Georgia penal system. He was convicted of violating the Georgia Controlled Substance Act and sentenced to fifteen years imprisonment and immediately upon his release, to fifteen years probation. After his conviction, Walker appealed to the Georgia Court of Appeals where he unsuccessfully urged that his appointed counsel did not have sufficient time to prepare for trial, that the trial court erred by refusing to grant the defendant a continuance, and that the evidence was insufficient to support his conviction. The court of appeals affirmed. 157 Ga.App. 484, 277 S.E.2d 740 (1981). The Georgia Supreme Court vacated the court of appeals' opinion for reconsideration in light of the United States Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 286 S.E.2d 425 (1981). The court of appeals again affirmed, finding that a rational trier of fact could have reasonably found the defendant guilty beyond a reasonable doubt, 158 Ga.App. 306, 280 S.E.2d 438 (1981) and the Georgia Supreme Court denied certiorari.

Walker filed a petition for habeas corpus in the Superior Court of Butts County, Georgia which the court dismissed on Walker's request. Walker then filed this habeas petition in federal district court alleging that he received ineffective assistance of counsel at his state court trial because his appointed counsel did not have a reasonable time in which to prepare for trial and because the trial court refused to grant a continuance. The district court dismissed the petition finding that if Walker had a habeas corpus application pending in the Superior Court of Butts County, the federal petition would be premature. If the petitioner did not have an application pending in state court, the court stated, he had not exhausted available state remedies. We reverse.

A federal court will not grant habeas corpus relief to a person held in custody pursuant to a state court judgment unless it appears that the applicant has exhausted remedies available to him in the state courts. Bufalino v. Reno, 613 F.2d 568, 570 (5th Cir.1980); 28 U.S.C. Sec. 2254(b) (1976). The exhaustion requirement, however, does not require the prisoner to seek collateral review from the state judiciary of the same issues already raised on direct appeal. Cobb v. Wainwright, 666 F.2d 966, 969 n. 3 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Burton v. Oliver, 599 F.2d 49, 50 (5th Cir.1979). In the case at bar, Walker raises the same issues in his habeas petition that he included in his direct appeal in state court. See Walker v. State, 157 Ga.App. 484, 277 S.E.2d 740, vacated and remanded, 248 Ga. 808, 286 S.E.2d 425, aff'd...