Ellis v. State

135 So. 2d 814, 41 Ala. App. 438, 1961 Ala. App. LEXIS 322

• Court: Alabama Court of Appeals
• Decided: October 3, 1961
• Docket: 3 Div. 88
• Status: Published

Opinion

PRICE, Judge.

Homer D. Ellis filed in the Circuit Court of Montgomery County, Alabama, a petition which purports to be a petition for writ of habeas corpus against Martin J. Wiman, Warden of Kilby Prison, and Frank A. Lee, Prison Commissioner.

The Attorney General filed a motion to dismiss the petition on the ground that the matters set out therein cannot properly be raised by petitioji for writ of habeas corpus and because it seeks to attack the validity of the judgment of conviction which is regular on its face. Attached to the motion to dismiss is a copy of the judgment of conviction entered in the Circuit Court of Shelby. County on October 25, 1955

After a hearing on the petition and the motion, the circuit court granted the State’s motion to dismiss the petition.

In order to impeach the trial court’s jurisdiction on habeas .corpus, illegality must appear on the face of the proceedings. Griffin v. State, 258 Ala. 557, 558, 63 So. 2d 682; Ex parte Winnagle, 269 Ala. 668, 115 So.2d 261.

The judgment of conviction is valid on its face. The petition is insufficient to make out a prima facie case for the granting of the writ of habeas corpus. The action of the circuit judge in dismissing the petition was without error.

Moreover, the matters sought to be raised by the petition for habeas corpus were fully considered and reviewed on' appeal. See Ellis v. State, 39 Ala.App. 325, 100 So.2d 725.

Affirmed.