Huffman v. Tollett

321 F. Supp. 58, 1970 U.S. Dist. LEXIS 9434

• Court: District Court, E.D. Tennessee
• Decided: November 24, 1970
• Docket: Civ. A. No. 2619
• Status: Published

Opinion

MEMORANDUM OPINION AND ORDER

C. G. NEESE, District Judge.

This is an application by the petitioner Mr. Huffman, in custody of the respondent pursuant to judgments of the Criminal Court of Sullivan County, Tennessee, for the federal writ of habeas corpus, on the ground that he is in such custody in violation of the Constitution of the United States. 28 U.S.C. § 2254 (a). Mr. Huffman claims that he has appealed his judgments of conviction in that court to the Court of Criminal Appeals of Tennessee, which affirmed the judgments, Huffman v. State, 458 S.W. 2d 29, and unsuccessfully sought certiorari from the Tennessee Supreme Court, which exhausts his state remedies.

In this, Mr. Huffman is in error. He is not deemed to have exhausted the remedies available in the courts of Tennessee, within the meaning of 28 U.S.C. § 2254, because he still has the right under the law of Tennessee to raise by available procedures in the courts of Tennessee, T.C.A. §§ 40-3801 etseq. (esp. § 40-3803), 23-1801, the questions here presented. 28 U.S.C. § 2254(c); Curtis v. Buchkoe, C.A.6th (1964), 336 F.2d 32; Rollins v. Haskins, C.A.6th (1965), 348 F.2d 454, 456, certiorari denied (1965), 382 U.S. 895, 86 S.Ct. 191, 15 L.Ed.2d 152.

It appearing to the Court from the application of the petitioner that he is not now entitled to the federal writ of habeas corpus, 28 U.S.C. § 2243, his application hereby is

Denied, without prejudice to the petitioner’s right to reapply to this Court for such, should he exhaust all his remedies in the courts of Tennessee without having been accorded his federal rights therein.