Herman Jackson, Jr. v. Louie L. Wainwright, Director, Division of Corrections
Herman JACKSON, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee
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.
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Cited by 6 cases
View all citing references →Relies on it most ⓘ
- Eddie Fuller v. State of Florida
- Russell Mosley v. S. Lamont Smith, Warden, Georgia State Prison
- William Nicholas Karcher v. Louie L. Wainwright, Director, Florida Division of Corrections
- Rex Eugene Parson v. Dr. George J. Beto, Director, Texas Department of Corrections
- Walter Thomas, Jr. v. Dr. George J. Beto, Director, Texas Department of Corrections
- Harold S. Kemp v. Louie L. Wainwright, Director, Division of Corrections, State of Florida
Most recent
- William Nicholas Karcher v. Louie L. Wainwright, Director, Florida Division of Corrections
- Eddie Fuller v. State of Florida
- Harold S. Kemp v. Louie L. Wainwright, Director, Division of Corrections, State of Florida
- Russell Mosley v. S. Lamont Smith, Warden, Georgia State Prison
- Walter Thomas, Jr. v. Dr. George J. Beto, Director, Texas Department of Corrections
- Rex Eugene Parson v. Dr. George J. Beto, Director, Texas Department of Corrections
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