Opinion
No. 26596.
December 2, 1968.
Willie D. Morris, pro se.
Earl Faircloth, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for defendant-appellee.
Before THORNBERRY and DYER, Circuit Judges, and KEADY, District Judge.
This appeal is from a district court order denying the petition of a Florida convict for a writ of habeas corpus. Appellant, represented by a public defender, was convicted on his plea of guilty to a charge of manslaughter. On February 25, 1966, he was sentenced to a term of six months to twenty years. His direct appeal was quashed on motion of the State; the Florida Supreme Court dismissed his petition for certiorari.
Appellant then filed his motion for writ of habeas corpus in the United States District Court, which denied the petition on the ground that the contentions lacked merit. The court denied a certificate of probable cause to appeal, but granted leave to appeal in forma pauperis. Appellant has not been granted a certificate of probable cause by this Court, nor will such certificate be granted.
A review of the record clearly indicates that Morris has not availed himself of Florida Criminal Procedure Rule One, F.S.A. ch. 924 Appendix — the procedure for obtaining a hearing in the trial court to determine the merits of his allegations. Until the available state remedies are exhausted, the merits of a petition for habeas corpus should not be considered by federal courts. ( 28 U.S.C. § 2254; Milton v. Wainwright, 5th Cir. 1968, 396 F.2d 214; Texas v. Payton, 5th Cir. 1968, 390 F.2d 261). The judgment of the district court is affirmed.