Opinion
No. 12786.
November 2, 1956.
Nat Tipton, Advocate General of Tenn., Nashville, Tenn., for appellant.
Frank S. King, Jr., Nashville, Tenn., for appellee.
Before MARTIN, McALLISTER and STEWART, Circuit Judges.
This is an appeal by the Warden of the Tennessee State Prison from a judgment of the District Court for the Middle District of Tennessee which granted the appellee a writ of habeas corpus and ordered his release from custody.
The court held that the appellee had exhausted the remedies available to him in the courts of Tennessee, and that under the circumstances disclosed by the record, his failure to seek a writ of certiorari in the United States Supreme Court did not preclude his right to apply to the federal district court for habeas corpus relief. The court further held that the statute under authority of which the appellee was confined, the Tennessee Habitual Criminal Act, as originally enacted, Williams' Code Tenn. § 11863.1 et seq., was offensive to the Fourteenth Amendment of the United States Constitution in permitting a defendant to be required to answer the charge of being an habitual criminal without actual notice in advance of trial.
The opinion of Judge Davies in which these conclusions are reached is reasoned with clarity and thoroughness. It is published in D.C., 136 F. Supp. 671. For the reasons there stated, the judgment of the district court is affirmed.