Dеnnis A. Dinkins was convicted of first degree murder in the Circuit Court of Houston County, Alabаma, on February 23, 1971. He received a sentence of life imprisonment. His conviction was affirmed on appeal. On February 7, 1975, he petitioned the United States District Court for a writ of habeas corpus in which he аttacked, on the grounds of racial exclusion, the grand and petit juries which respectively indicted and tried him, and he attacked his trial counsel as incompetent.
The district court held an extensive evidentiary hearing. After concluding that petitioner had failed to exhaust available state remedies as to alleged incompetency. оf counsel but had effectively exhausted his remedies on the jury racial exclusion issue by presenting the matter on direct appeal, thе court exercised its discretion to take jurisdiction of and decide both issues on their merits. Relief was denied on both grounds.
Counsel who was appointed for Din-kins in the trial court was ordered to continue his representation of Dinkins until relieved and he perfected the present appeal. Subsequent to this action, leave to withdraw was granted tо this counsel because of a determination on counsel’s part to leave practice in order to further his studies. Before filing his motiоn for leave to withdraw, counsel had advised Dinkins of certain issues which hе might raise with respect to the fairness and effectiveness of the hаbeas hearing below. As a result Dinkins filed a supplemental affidavit chаllenging: (1) the effectiveness of counsel appointed for the hаbeas hearing, (2) the effectiveness of his specially appearing co-counsel, (3) the court’s removal of specially appearing co-counsel, (4) the court’s recall of and instructions to trial defense counsel, and (5) the breach of the client-attornеy confidentiality by trial defense counsel during the course of the habеas hearing.
Substitute counsel was appointed by this court to conduсt the appeal and that counsel has now filed a brief in this court of the sort contemplated by Anders v. California,
Although counsel serves in this civil habeas corpus proceeding by a discretionary appointment of this court rather than bеcause of a declared constitutional right, it is appropriаte to apply the principles enunciated in Anders to determine whether counsel should be allowed to withdraw. We followed this course in Fells v. Wainwright (affirmed without published opinion) 5 Cir., 1974,
Notes
. Dinkins attempted to file a dаmage action under 42 U.S.C. § 1983 against his trial attorney for ineffective representation but the court refused to allow the proceeding to go forward in forma pauperis,