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464 F2d 560 Bryant v. Bailey

464 F.2d 560

Wayland BRYANT, Petitioner-Appellant,
v.
Mel BAILEY, et al., Respondents-Appellees.

No. 72-1628 Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

July 13, 1972.
Rehearing and Rehearing En Banc Denied Aug. 16, 1972.

Ralph I. Knowles, Jr., Drake, Knowles & Still, University, Ala., for petitioner-appellant.

William J. Baxley, Atty. Gen., J. Victor Price, Jr., Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM:

1

Wayland Bryant was convicted in Alabama State Court of assault with intent to murder. He was sentenced to serve five years in Alabama state prisons. He has now filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, claiming that the State's failure to provide him with a free transcript of his preliminary hearing constituted a violation of due process of law and equal protection under the Fourteenth Amendment. He unsuccessfully sought similar relief in a petition for writ of mandamus filed in the Alabama Court of Criminal Appeals and in a petition for a writ of certiorari filed in the Supreme Court of Alabama successively. His appeal on the merits from his conviction is presently pending and undecided in the Alabama Court of Criminal Appeals. The District Court correctly held that he had failed to exhaust state remedies. The judgment is affirmed. See Williams v. Bailey, 5 Cir., 1972, 247 F.2d 463 which decided the same issue adversely to appellant's position.

2

Affirmed.

3

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

4

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is denied.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I