Herman Jackson, Jr. v. Louie L. Wainwright, Director, Division of Corrections

Fifth Circuit

Herman Jackson, Jr. v. Louie L. Wainwright, Director, Division of Corrections

450 F.2d 289, 1971 U.S. App. LEXIS 7420

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 26, 1971

Docket71-2238

StatusPublished

Cited by6 cases

This text of 450 F.2d 289 (Herman Jackson, Jr. v. Louie L. Wainwright, Director, Division of Corrections) 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.

Bluebook

Herman Jackson, Jr. v. Louie L. Wainwright, Director, Division of Corrections, 450 F.2d 289, 1971 U.S. App. LEXIS 7420 (5th Cir. 1971).

Pincite

Opinion

PER CURIAM:

This appeal is taken from an order of the district court denying the petition of a Florida state prisoner for the writ of habeas corpus. We affirm.

Appellant, represented by court-appointed counsel was tried by a jury, convicted of rape, and was sentenced to life imprisonment. His direct appeal was dismissed for failure to file timely notice of appeal. In his habeas petition filed in the court below appellant alleged that (1) his direct appeal was thwarted by the clerk of court; (2) he was denied the right to cross examine a state’s witness ; (3) the state knowingly used perjured testimony; (4) the state used illegally obtained evidence; and (5) there was racial discrimination employed in selection of the grand and petit juries. The district court denied relief for failure to exhaust state remedies.

The record clearly indicates that allegations 2, 3, 4, and 5 have never been presented to the state trial court by way of a motion to vacate sentence, Rule 1.850, Fla.R.Crim.P. 33 F.S.A. In addition, the state conceded in the court below that appellant is entitled to an out of *290 time direct appeal which he may obtain by petitioning the state trial court. Since the appellant has available to him state procedures through which he may obtain relief, the district court was correct in denying his petition. Garrett v. Texas, 5th Cir. 1970, 435 F.2d 709; Harrison v. Wainwright, 5th Cir. 1970, 424 F.2d 633; Wheeler v. Beto, 5th Cir. 1969, 407 F.2d 816; Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731; Texas v. Payton, 5th Cir. 1968, 390 F.2d 261.

The district court was not in error in denying a request by appellant to obtain a copy of his trial transcript. Upon establishing his right to a direct appeal, his request for a copy of the transcript should be directed to the appropriate state court. Kirby v. Sutton, 5th Cir. 1971, 436 F.2d 1082. The judgment below is affirmed.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

This appeal is taken from an order of the district court denying the petition of a Florida state prisoner for the writ of habeas corpus. We affirm.

Appellant, represented by court-appointed counsel was tried by a jury, convicted of rape, and was sentenced to life imprisonment. His direct appeal was dismissed for failure to file timely notice of appeal. In his habeas petition filed in the court below appellant alleged that (1) his direct appeal was thwarted by the clerk of court; (2) he was denied the right to cross examine a state’s witness ; (3) the state knowingly used perjured testimony; (4) the state used illegally obtained evidence; and (5) there was racial discrimination employed in selection of the grand and petit juries. The district court denied relief for failure to exhaust state remedies.

The record clearly indicates that allegations 2, 3, 4, and 5 have never been presented to the state trial court by way of a motion to vacate sentence, Rule 1.850, Fla.R.Crim.P. 33 F.S.A. In addition, the state conceded in the court below that appellant is entitled to an out of *290 time direct appeal which he may obtain by petitioning the state trial court. Since the appellant has available to him state procedures through which he may obtain relief, the district court was correct in denying his petition. Garrett v. Texas, 5th Cir. 1970, 435 F.2d 709; Harrison v. Wainwright, 5th Cir. 1970, 424 F.2d 633; Wheeler v. Beto, 5th Cir. 1969, 407 F.2d 816; Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731; Texas v. Payton, 5th Cir. 1968, 390 F.2d 261.

The district court was not in error in denying a request by appellant to obtain a copy of his trial transcript. Upon establishing his right to a direct appeal, his request for a copy of the transcript should be directed to the appropriate state court. Kirby v. Sutton, 5th Cir. 1971, 436 F.2d 1082. The judgment below is affirmed.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

450 F.2d 289, 1971 U.S. App. LEXIS 7420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-jackson-jr-v-louie-l-wainwright-director-division-of-ca5-1971.

Opinion

Related

Cite This Page — Counsel Stack