Whitus v. Balkcom

Citation299 F.2d 844
Decision Date11 April 1962
Docket NumberNo. 19072.,19072.
PartiesPhil WHITUS, Appellant, v. R. P. BALKCOM, Warden, Georgia State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

P. Walter Jones, Albany, Ga., W. R. Harrell, Macon, Ga., for appellant.

Julian Eugene Cook, Atty. Gen., Howard P. Wallace and Earl L. Hickman, Asst. Attys. Gen., for appellee.

Before HUTCHESON, CAMERON, and GEWIN, Circuit Judges.


This is an appeal from an order of the United States District Court for the Southern District of Georgia dismissing a petition for writ of habeas corpus.

Appellant is held under a sentence of death by electrocution imposed in a state court of Georgia for aiding and abetting one Leon Davis in the killing of Peter Glenn. The conviction was affirmed by the Supreme Court of Georgia on September 12, 1960, 216 Ga. 284, 116 S.E.2d 205. Justices Duckworth, Head and Quillian dissented. On February 27, 1961, the United States Supreme Court denied certiorari. 365 U.S. 831, 81 S.Ct. 718, 5 L.Ed.2d 708. Our disposition of this appeal renders unnecessary reaching the merits of the petition, which alleges deprivation of constitutional rights in the state trial.

The district judge, after a hearing, denied the petition for habeas corpus on the ground that petitioner had not exhausted his state remedies, as required by 28 U.S.C. § 2254. Here the appellant argues that the habeas corpus remedy provided by 50-101 of the Georgia Code was not available to him.

The district judge, quoting from Wells v. Pridgen, 154 Ga. 397 at p. 400, 114 S.E. 355 at p. 357: "It may be said that a judgment denying to a prisoner a constitutional right is void, and he may be discharged on habeas corpus", held that the petitioner did have a state remedy and that he had not exhausted it and, so holding, dismissed the motion.

Finding ourselves in full agreement with the district judge's view, we affirm his judgment.


To continue reading

Request your trial
4 cases
  • Whitus v. Balkcom
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 18, 1964
    ...the petition on the ground, among others, that a state remedy through habeas corpus was still available. We affirmed. Whitus v. Balkcom, 5 Cir. 1962, 299 F.2d 844. The Supreme Court, per curiam, vacated the judgment and remanded the case. Whitus v. Balkcom, 1962, 370 U.S. 728, 82 S.Ct. 1575......
  • Whitus v. State of Georgia Whitus v. State of Georgia, s. 650 and 253
    • United States
    • United States Supreme Court
    • January 23, 1967
    ...the composition of the grand and petit juries. The District Court dismissed the writ and the Court of Appeals affirmed. Whitus v. Balkcom, 5 Cir., 299 F.2d 844. On writ of certiorari, we vacated that judgment and remanded the case to the District Court for a hearing on the claim of discrimi......
  • Whitus v. State
    • United States
    • United States Court of Appeals (Georgia)
    • June 15, 1965
    ...application was denied on the ground that the remedy was available in the State courts. The denial of the writ was affirmed in Whitus v. Balkcom, 299 F.2d 844, but reversed in Whitus v. Balkcom, 370 U.S. 728, 82 S.Ct. 1575, 8 L.Ed.2d 803. The matter again came on for hearing before Judge Sc......
  • United States v. Davis, 20436.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 25, 1963
    ...decided against his contentions by the State Courts. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Whitus v. Balkcom, 299 F.2d 844 (C.A. 5, 1962), reversed, per curiam 370 U.S. 728, 82 S.Ct. 1575, 8 L.Ed.2d 803 (1962); Daugharty v. Gladden, 257 F.2d 750, 754 (C.A. 9, The ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT