Herman Edward Peppers v. R. P. Balkcom, Jr., Warden Georgia State Prison

Fifth Circuit

Herman Edward Peppers v. R. P. Balkcom, Jr., Warden Georgia State Prison

331 F.2d 150, 1964 U.S. App. LEXIS 5525

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 28, 1964

Docket21182

StatusPublished

This text of 331 F.2d 150 (Herman Edward Peppers v. R. P. Balkcom, Jr., Warden Georgia State Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Herman Edward Peppers v. R. P. Balkcom, Jr., Warden Georgia State Prison, 331 F.2d 150, 1964 U.S. App. LEXIS 5525 (5th Cir. 1964).

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Opinion

PER CURIAM.

The brief of the Appellee Warden does not seriously deny the incorrectness of the District Judge’s conclusion that there was a failure to exhaust state remedies, 28 U.S.C.A. § 2254, and therefore the petition for habeas corpus should be dismissed without a plenary hearing. The petition otherwise sets forth adequately the claim that on his state court trial for murder, petitioner was denied effective assistance of counsel. This seems to have been recognized by the District Court in its allowance of the appeal in forma pauperis and the stay of execution pending appeal. We treat this as also the equivalent of a certificate of *151 probable cause. 28 U.S.C.A. § 2253. The District Court by appropriate proceedings was therefore required to determine the merits of this constitutional claim. Accordingly, the case is reversed and remanded to the District Court for an appropriate hearing in light of controlling principles. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.

Reversed and remanded.

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PER CURIAM.

The brief of the Appellee Warden does not seriously deny the incorrectness of the District Judge’s conclusion that there was a failure to exhaust state remedies, 28 U.S.C.A. § 2254, and therefore the petition for habeas corpus should be dismissed without a plenary hearing. The petition otherwise sets forth adequately the claim that on his state court trial for murder, petitioner was denied effective assistance of counsel. This seems to have been recognized by the District Court in its allowance of the appeal in forma pauperis and the stay of execution pending appeal. We treat this as also the equivalent of a certificate of *151 probable cause. 28 U.S.C.A. § 2253. The District Court by appropriate proceedings was therefore required to determine the merits of this constitutional claim. Accordingly, the case is reversed and remanded to the District Court for an appropriate hearing in light of controlling principles. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.

Reversed and remanded.

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331 F.2d 150, 1964 U.S. App. LEXIS 5525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-edward-peppers-v-r-p-balkcom-jr-warden-georgia-state-prison-ca5-1964.

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