RIVES, Circuit Judge:
Warden Smith appeals from a judgment granting Elkins a writ of habeas corpus on grounds that, under principles enunciated in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, his constitutional rights against self-incrimination have been violated during custodial interrogation. We vacate the judgment and remand the case with directions to dismiss without prejudice for failure to exhaust available and adequate state remedies.
Elkins was arrested and questioned about the location of the murder weapon prior to the Supreme Court’s decision in Miranda. He was tried, however, approximately six weeks after the Miranda decision. Elkins was represented at trial by retained counsel, Wesley Asinof, Esq., a respected and experienced criminal defense attorney. The defense asserted was justifiable homicide.
At trial, one of the arresting officers testified that, as he arrested Elkins, he advised him that he did not have to make any statement and that he was constitutionally entitled to have a lawyer if he wished. Then the police officer testified that he asked Elkins where the murder weapon was and Elkins stated that he left it at his brother’s service station.
Elkins’ counsel did not object to admission of the testimony respecting the gun, nor to introduction of the weapon (the finding of which was clearly a fruit of Elkins’ statement to the arresting officer). In fact, Elkins attempted to bolster his justifiable homicide defense by rhetorically responding on cross-examination that he would not have made a voluntary turnover were he trying to avoid involvement in the homicide. On the other hand, defense counsel did object to admission of hearsay statements by Elkins’ nephew to another police officer in the presence of Elkins.
On appeal, Elkins, represented then by court-appointed counsel, enumerated as error the overruling of the defense objection at page 83 of the transcript, note 5 supra, and alleged a violation of the hearsay rule and of the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution. Cited obliquely as authority for this enumeration was Miranda v. Arizona, supra. See Elkins v. State, 1966, 222 Ga. 746, 152 S.E.2d 377, 378-379. In affirming the conviction, the Supreme Court of Georgia disposed of the objection issue with the observation that the hearsay “did not relate any incriminating admission of the defendant, and the testimony was not subject to the objection made.” Elkins v. State, supra at 379. Thus, thei Supreme Court of Georgia never passed upon the Miranda admissibility question, but disposed of no more than an inarticulate hearsay objection.
From the foregoing examination of the posture of this case as it appears before this Court, it becomes readily apparent that at least three questions must be decided before Elkins’ federal habeas petition can be decided on its merits. First, Elkins may never have squarely raised the Miranda issue before any state tribunal whether on appeal or by collateral attack; second, the Miranda issue may have been intentionally waived as a trial tactic based upon its inconsistency with the justifiable homicide defense ; third, the question is presented as to whether Miranda, which was designed to regulate police warning practices, should necessitate reversal when the interrogation without adequate warnings antedated the Supreme Court decision.
The hearing in the federal district court was limited to legal argument on the respondent’s, motion for summary judgment. There has been no eviden-tiary hearing on whether the Miranda issue was intentionally waived as a trial tactic because of its apparent inconsistency with the justifiable homicide defense. Instead, however, of reversing and remanding for such an evidentiary hearing and for decision of the questions of law, we vacate and remand with directions to dismiss without prejudice for failure to exhaust available and adequate state remedies. Georgia has an adequate and available post-conviction procedure. Elkins should first exhaust his state remedies before seeking relief in a federal forum.
The judgment is therefore vacated and the case is remanded with directions to dismiss the petition without prejudice.
Vacated and remanded with directions.
. Miranda was decided on June 13, 1966; Elkins was tried on August 1, 1966 (R. 49).
. Testimony of Officer D. L. Fuller, Transcript, p. 79; Record, p. 121.
. The weapon was introduced without objection as State’s Exhibit No. 9 (Transcript 87; Record 128).
. Transcript, p. 239; Record, p. 252.
. Officer William D. Gregory noted that “I asked him [the nephew] if he, the prisoner [Elkins] had left a gun with him at the service station.” Before the next question could be answered, Mr. Asinof objected, stating: “Now, that’s a hearsay conversation.” The prosecution established that Elkins was present during the hearsay conversation and the trial court allowed the questioning to continue, whereupon Mr. Asinof made the following ambiguous comment: “If Tour Honor please, I want to make this observation. We are objecting on the ground that the testimony so far that the defendant stated that he did not wish to make any statement and that he wanted to consult with his attorney, and this would not be admissible against the defendant in any way; hearsay.” (Transcript 83, Record 124). The trial court overruled the objection. The nephew never answered the original inquiry whether Elkins had turned the gun over to him, although he did turn a weapon over to the police according to the officer’s testimony.
(Transcript 83-84; Record 125.)
. See Georgia Habeas Corpus Act of 1967, Ga.Laws 1967, p. 835; Ga.Code Ann. § 50-127.
. Peters v. Rutledge, 5 Cir. 1968, 397 F.2d 731. See Fox v. Dutton, 5 Cir. 1968, 406 F.2d 123; Picklesimer v. Smith, 5 Cir. 1968, 405 F.2d 186; Rearden v. Smith, 5 Cir. 1968, 403 F.2d 773; Henderson v. Dutton, 5 Cir. 1968, 397 F.2d 375. See also Spencer v. Wainwright, 5 Cir. 1968, 403 F.2d 778, indicating in footnotes thereto similar requirements of exhaustion of state remedies in Florida, Texas, Louisiana and Mississippi.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.