427 F.2d 177

Cleophus YOUNG, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 29011

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 12, 1970.

Cleophus Young, pro se.

MacDonald Gallion, Atty. Gen., State of Alabama, Montgomery, Ala., for appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM.

Petitioner Cleophus Young, an Alabama prison inmate, was convicted of second degree murder by a jury in an Alabama state court and was sentenced to life imprisonment. His conviction was affirmed on direct appeal by the Supreme Court of Alabama. Young v. State, 1969, 283 Ala. 676, 220 So.2d 843. He then filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Alabama. That court denied relief without an evidentiary hearing, ruling that Young had failed to exhaust his state remedies within the meaning of 28 U.S. C.A. § 2254. Because we conclude that the district court was in error on the issue of exhaustion, we vacate the judgment below and remand for consideration on the merits.1

The record clearly shows that the grounds upon which Young seeks federal habeas corpus relief were presented to and considered by the Alabama Supreme Court on direct appeal.2 Despite this *178fact, the court below dismissed Young’s petition, entering the following order:

“Upon consideration of the petition of Cleophus Young for a writ of habeas corpus, it affirmatively appears from the petition itself that petitioner has failed to mount a collateral attack in the state courts. Petitioner is required, by virtue of Title 28, Section 2254, U.S.C., to exhaust his available state remedies before relief can be considered in federal court.
“It is therefore the ORDER, JUDGMENT, and DECREE of this court that this petition for a writ of habeas corpus be and the same is hereby DISMISSED.”

In requiring a collateral attack in the state courts with regard to issues which had already been presented to the Alabama Supreme Court on direct appeal, the court was clearly in error. Although a literal reading of section 2254 might suggest a different conclusion,3 it is well established that if a federal habeas corpus petitioner has once presented a claim to the highest court of the state, he has exhausted his state remedies insofar as that claim is concerned; he is not required by section 2254 to present that claim again in a collateral proceeding in the state courts. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Williams v. Wainwright, 5 Cir. 1969, 410 F.2d 144; United States ex rel. Howard v. Russell, 3 Cir. 1969, 405 F.2d 169; Hill v. Beto, 5 Cir. 1968, 390 F.2d 640, cert. denied, 393 U.S. 1007, 89 S.Ct. 491, 21 L.Ed.2d 472.4 This rule has been articulated by a district court in this circuit in these words:

“A defendant who has unsuccessfully appealed a state conviction to the state supreme court is not required to seek relief by collateral attack in state habeas corpus proceedings in order to establish exhaustion of state remedies. Section 2254 does not contemplate repetitious applications to state courts. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.” Brown v. Heyd, E.D.La.1967, 277 F.Supp. 899, 902, aff’d, 5 Cir. 1969, 406 F.2d 346, cert. denied, 396 U.S. 818, 90 S.Ct. 53, 24 L.Ed.2d 69.5

Since petitioner Young has already presented his claims to the highest court of the state, he has exhausted his state remedies within the meaning of section *1792254. Further application for review by a state court is unnecessary.6 Accordingly, the judgment of the district is vacated and the cause is remanded for consideration on the merits.

Vacated and remanded.

Young v. Alabama
427 F.2d 177

Case Details

Name
Young v. Alabama
Decision Date
May 12, 1970
Citations

427 F.2d 177

Jurisdiction
United States

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