Smith v. Daniel

MEMORANDUM OPINION

NEESE, District Judge.

This is an application for the federal writ of habeas corpus by Mr. Smith, who is in the custody of the respondent in lieu of posting bond, pursuant to the judgment of the General Sessions Court of Coffee County, Tennessee. He claims he is in such custody in violation of the Sixth, Seventh, Eighth and Fourteenth Amendments to the federal Constitution. 28 U.S.C. § 2254(a).

This Court lacks jurisdiction to grant the requested writ unless it appears that the applicant has exhausted by any available procedure his remedies in the courts of Tennessee. 28 U.S.C. § 2254(b), (c). Although the applicant applied to the Tennessee courts for, and was denied, the state writ of habeas corpus on May 10, 1969, and has no right to appeal that decision on the pauper’s oath, Peppers v. Daniel, etc., 306 F.Supp. 1225, civil action no. 1009, this district and division, memorandum opinion and order of November 4, 1969, he has an available procedure to raise the questions presented herein in the courts of Tennessee.

The applicant was convicted on his plea of guilty of the common law misdemeanor of public drunkenness, Willard v. State (1939), 174 Tenn. 642, 130 S.W.2d 99, 100 [1], by the General Sessions Court of Coffee County, Tennessee under the provisions of T.C.A. § 40-118. “ * * * Any person aggrieved by the judgment of the court of general sessions in a criminal case rendered under the provisions of § 40-118 * * *, may appeal such judgment to the next term of the court having criminal jurisdiction in said county upon * * * taking the oath prescribed by law for paupers. * * * ” T.C.A. § 40-426. His perfection of such appeal abrogates the judgment of the court of general sessions, and his case will stand for trial in the circuit court of Coffee County, Tennessee de novo. Roberts v. State (1963), 212 Tenn. 25, 367 S.W.2d 480, 481 [2].

It appearing that the applicant Mr. Smith has not exhausted his available remedies as to the questions presented herein in the courts of Tennessee, and, therefore, it appearing from his application that he is entitled to no relief, this Court finds, concludes and hereby

Orders that all relief be denied the petitioner Clyde Smith. Judgment will enter dismissing the petition. Rule 58, Federal Rules of Civil Procedure.