488 F2d 137 Bailey v. D M Van Cleve

488 F.2d 137

Osbie BAILEY, Petitioner-Appellee,
v.
D. M. VAN CLEVE, Warden, Atmore Prison Farm, Respondent-Appellant.

No. 73-2348 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Dec. 7, 1973.

William J. Baxley, Atty. Gen., Otis J. Goodwyn, Jr., Asst. Atty. Gen., Montgomery, Ala., for respondent-appellant.

Wilson M. Hawkins, Jr., Mobile, Ala. (Court-appointed), for petitioner-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

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1

The district court in this habeas corpus case granted the petition and set aside Osbie Bailey's three Alabama robbery convictions and ordered a new trial. The basis for this action was its determination that Bailey's attorney and the prosecutor jointly coerced him into entering his guilty pleas. Such a determination depends upon evidence not in the record of the state court guilty plea proceedings. Nothing in the record before us discloses that this evidence has ever been presented to the Alabama courts. Bailey appealed his conviction to the Alabama Court of Criminal Appeals arguing that his guilty pleas were not "understandingly and voluntarily" entered, but that court's opinion indicates that his appeal was based solely on the record of the lower court proceedings. See Bailey v. Alabama, 48 Ala.App. 149, 262 So.2d 636 (1972). The Attorney General of Alabama has represented in his brief before this court that the collateral remedy of coram nobis is presently available to Bailey in state court. We agree. Therefore, under 28 U.S.C. Sec. 2254(b) we must reverse the district court's decision and remand this case for Bailey to present his de hors the record claim to the state courts of Alabama without prejudice to his right to return to federal court if his exhaustion of existing state remedies does not afford the relief he seeks.

2

Vacated and remanded.

*

Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 5th Cir. 1970, 431 F.2d 409, Part I