347 F2d 375 Cumbee v. R P Balkcom

347 F.2d 375

Leroy CUMBEE, Appellant,
v.
R. P. BALKCOM, Jr., Warden, Georgia State Prison, Appellee.

No. 22014.

United States Court of Appeals Fifth Circuit.

June 14, 1965.

Leroy Cumbee, pro se.

Eugene Cook, Atty. Gen., Albert Sidney Johnson, Peyton S. Hawes, Jr., Asst. Attys. Gen., Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, and EDGERTON1 and SMITH,2 Circuit judges.

PER CURIAM:

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1

As to all of the alleged grounds for relief under this state habeas corpus petition which have been heretofore submitted to the State Court for consideration, we conclude that the trial court did not err in holding that they could be disposed of without a hearing. On the claim of appellant that the trial court did not charge the jury at the time of his State Court trial, even if this should amount to such essential unfairness as to be the basis of a habeas corpus proceeding, we find that this contention has never been submitted to the State Court. There was thus a failure of the appellant to exhaust State remedies as to this contention.

2

The judgment is affirmed.

1

Senior Circuit Judge of the D.C. Circuit, sitting by designation

2

Of the Third Circuit, sitting by designation