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WESTBROOK v. ZANT

No. 81-7836.

704 F.2d 1487 (1983)

Johnny Mack WESTBROOK, Petitioner, v. Walter B. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.

United States Court of Appeals, Eleventh Circuit.

May 16, 1983.

Attorney(s) appearing for the Case

Garland, Nuckolls & Catts, Steven H. Sadow, Joseph M. Nursey, Atlanta, Ga., for petitioner.

William Davis Hewitt, Asst. Atty. Gen., Atlanta, Ga., for respondent.

Before KRAVITCH, HATCHETT and CLARK, Circuit Judges.

HATCHETT, Circuit Judge:

State prisoner Johnny Mack Westbrook instituted this habeas corpus action by filing a petition containing both exhausted and unexhausted claims. Without holding an evidentiary hearing, the district court found all claims meritless and denied relief. We hold that the state's waiver of the exhaustion requirement of 28 U.S.C.A. § 2254(b) permits us to address the merits of Westbrook's unexhausted claims. The need for evidentiary proof as...

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