RONNIE BUCK, PETITIONER-APPELLANT,
v.
CALVIN GREEN, WARDEN AND MICHAEL J. BOWERS, ATTY. GENERAL OF GEORGIA, RESPONDENTS-APPELLEES

11th Cir. | 1984-10-16
No. 83-8700
743 F.2d 1567 Court of Appeals for the Eleventh Circuit (1984) Caution
Cited by 14 cases

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Holding

A state prisoner is not required to seek discretionary review in the state supreme court if that court's jurisdiction is limited, nor must they seek collateral review of issues already raised on direct appeal.


Facts & Procedural History

Appellant was convicted of armed robbery and aggravated battery, and his direct appeal challenging jury composition was affirmed by the Georgia Court …

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Opinion of the Court
JAMES C. HILL, Circuit Judge:

JAMES C. HILL, Circuit Judge:

The present appeal arises from an order by the district court dismissing appellant’s habeas petition for failure to exhaust state remedies. Finding that appellant has satisfied the exhaustion requirement, we reverse.

Appellant was convicted of armed robbery and aggravated battery in a Georgia Superior Court. He appealed his convictions to the Georgia Court of Appeals and raised only one issue: whether the grand and traverse jury pools in Washington County were unconstitutionally composed. The Georgia Court of Appeals rejected appellant’s challenge and affirmed his convictions. Buck v. State, 151 Ga.App. 252, 259 S.E. 2d 493 (1979). Appellant then filed a pro se petition for habeas relief in the Superior Court of Tattnall County, again challenging only the composition of the grand and traverse juries. The state habe-as petition was later dismissed without prejudice.

Appellant then petitioned the District Court for the Middle District of Georgia for habeas relief. His federal habeas petition again raised but a single ground for relief: that his convictions were obtained by grand and petit jury panels in which blacks were systematically excluded and which did not represent a fair cross-section of the community. See Record on Appeal at 5. The district court concluded that appellant had not exhausted his state remedies, because he had failed to seek review by the Supreme Court of Georgia of the Georgia Court of Appeals’ decision in his direct appeal and because he failed to appeal the dismissal of his state habeas petition. The district court dismissed appellant’s petition for federal habeas relief for want of exhaustion. We disagree.

First, appellant was not required to seek review in the Georgia Supreme Court of the Georgia Court of Appeals’ affirmance of his conviction as a precondition to seeking federal habeas relief. The state concedes that appellant had no right to appeal the decision of the Georgia Court of Appeals to the Georgia Supreme Court. See King v. State, 155 Ga. 707, 118 S.E. 368 (1923).

Thus, appellant could seek review in the Georgia Supreme Court only by writ of certiorari. 155 Ga. at 712, 118 S.E. at 371. The state Supreme Court’s certiorari jurisdiction is extremely limited, being restricted by the Georgia Constitution to “cases in the Court of Appeals which are of gravity or great public importance.” Ga. Const, art. VI, § 6, ¶ 4.

Thus, the Supreme Court of Georgia does not ordinarily review assignments of error from a judgment of the Court of Appeals. Frazier v. Southern Railway Co., 200 Ga. 590, 37 S.E. 2d 774 (1946). In this respect, then, the jurisdiction of the Georgia Supreme Court closely parallels that of the supreme courts of the other two states that comprise the Eleventh Circuit, Alabama and Florida. See Smith v. White, 719 F. 2d 390 (11th Cir.1983) (discussing issue in context of Alabama and Florida law).

This circuit has held that 28 U.S.C. § 2254 does not require a Florida prisoner to seek review in the Florida Supreme Court of a Florida appellate court’s affirmance of his conviction in order to exhaust state remedies. Williams v. Wainwright, 452 F. 2d 775, 776-77. We reached the same result when the issue was presented in the context of a federal habeas petition filed by an Alabama prisoner. Smith v. White, 719 F. 2d at 392. Both Williams and Smith rest on the premise that the state supreme court’s limited jurisdiction “offers no practical remedy that [the state prisoner] was required to exhaust under 28 U.S.C. § 2254____ The requirements of this section are rooted in the doctrine of comity and should not be so construed as to burden the state system with meaningless petitions for relief to forums which are not intended by state law to consider them.” Williams v. Wainwright, 452 F. 2d at 777 (citation omitted).

As the State of Georgia concedes, the jurisdiction of the Georgia Supreme Court is similarly circumscribed; therefore, we follow Williams and Smith and conclude that appellant was not required to petition the Georgia Supreme Court for certiorari for purposes of exhausting his state remedies.

The district court also emphasized that appellant failed to seek review of the Georgia Superior Court’s dismissal of his state habeas petition.

However, the exhaustion requirement imposed by-28 U.S.C. § 2254 does not require a state prisoner to seek collateral review from the state courts of issues already raised on direct appeal. Walker v. Zant, 693 F. 2d 1087, 1088 (11th Cir.1982).

Thus, an issue which has been raised on direct appeal in state proceedings can serve as the basis for a federal habeas petition, provided, of course, that the petition does not assert exhausted and unexhausted claims. Id. There is no contention in this case that appellant failed to raise the jury composition issue in his direct appeal; similarly, the jury composition issue is the only question presented by appellant’s federal habeas petition.

Therefore, appellant’s claim has been exhausted and the district court erred in dismissing the petition for failure to exhaust state remedies.

For these reasons, the order of the district court is REVERSED and this case is REMANDED for further proceedings.


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Citator

Cited By

  • Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001)
    …ilar holding about discretionary review in the Florida Supreme Court, Williams v. Wainwright, 452 F. 2d 775 (5th Cir.1971), and a year after Smith we came to the same conclusion about discretionary review in the Georgia Supreme Court, Buck v. Green, 743 F. 2d 1567, 1569 (11th Cir.1984). In this § 2254 case involving an Alabama prisoner, we must now decide if Boerckel applies to habeas cases in which the direct appeal was completed before the rule of that case was announced; whether Boerck-el overruled our S…
    1 / 3
  • Griffin v. Louie L. Wainwright, 760 F.2d 1505 (11th Cir. 1985)
    …the legal theory upon which Griffin based his assertion; and they disposed of this claim. See Picard v. Conner, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971); Westbrook v. Zant, 704 F. 2d 1494 (11th Cir.1983); and Buck v. Green, 743 F. 2d 1567 (11th Cir.1984). The state courts denied relief on this claim without an evidentiary hearing on the grounds that it, along with other claims, was “insufficient on its face to state a claim for relief.” Griffin v. State, 447 So. 2d 875, 876 (Fla.1984…
  • Brand v. Grady Lewis, 784 F.2d 1515 (11th Cir. 1986)
    …e was in error. Brand pursued his ineffectiveness claim in the courts of Georgia on a direct action, rather than by means of collateral attack. Neither side questions the adequacy of a direct action to meet the exhaustion requirement. Buck v. Green, 743 F. 2d 1567, 1569 (11th Cir.1984); Walker v. Zant, 693 F. 2d 1087, 1088 (11th Cir.1982). The only question, then, is whether a direct state court action fulfills the exhaustion requirement when the state court fails to conduct an evidentiary hearing. It does. T…

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