Cozzolino v. Tennessee

MEMORANDUM OPINION

NEESE, District Judge.

This is a pro se application by the petitioner Mr. Cozzolino for the federal writ of habeas corpus. He claims he is in the custody of Mr. Jim Rose,^* warden of the Tennessee state penitentiary, pursuant to the judgment of the Criminal Court of Sullivan County, Tennessee in violation of the Constitution, Fourteenth Amendment. 28 U.S.C. § 2254(a). He claims further the exhaustion of his available state remedies. 28 U.S.C. §§ 2254(b), (c).

This Court has heretofore considered the factual issue submitted by the applicant and denied him relief. Cozzolino, petitioner, v. State of Tennessee, respondent, civil action no. 3078, this district and division, judgment of August 14, 1973, affirmed C.A. 6th (1974), Cozzolino, petitioner-appellant, v. State of Tennessee, respondent-appellee, order of January 30, 1974 in 489 F.2d 756. He now claims that the state trial court erred in admitting certain evidence in the criminal trial in which his punishment was enhanced to life imprisonment. This is not a proper ground for relief through habeas corpus in the federal courts, as it relates to Tennessee law and procedure and, as such, represents an alleged error correctable only on appeal. Manier v. Neil, D.C.Tenn. (1969), 306 F.Supp. 643, 644 [2], affirmed C.A. 6th (1969), order of December 8, 1969 in no. 19,780.

Accordingly, the applicant hereby is denied all relief. Rule 58(1), Federal Rules of Civil Procedure. Should the petitioner Mr. Cozzolino give timely notice of an appeal from the judgment to be entered herein, he is authorized to proceed on appeal in forma pauperis. Rule 24(a), Federal Rules of Appellate Procedure. Any such notice will be treated also as an application for a certificate of probable cause, which, as only an issue of law is presented, will issue. Rule 22 (k), Federal Rules of Appellate Procedure.

* The applicant being in such custody, the title of this action hereby is amended to reflect that the respondent is Jim Rose, etc.