Gresham v. Smith , 226 Ga. 290 ( 1970 )

Felton, Justice.

1. The 1967 case of Whitus v. Georgia, 385 U. S. 545 (87 SC 643, 17 LE2d 599), will not be given retroactive application in this case in which no challenge to the array of jurors, on the ground of racial discrimination, was made at the time of the appellant’s trial on October 15, 1960. Brawner v. Smith, 225 Ga. 296 (2) (167 SE2d 753), cert. den. 396 U. S. 927 (90 SC 262, 24 LE2d 225). Enumerated errors 1 and 2 are without merit.

2. Enumerated error 3 is that “The court below erred in finding as a matter of law that no constitutional right of the appellant had been violated and that he was serving a legal sentence.” The only ground alleged in the petition for the writ of habeas corpus, other than those decided in Division 1 hereinabove and the manner of the court’s sentencing, which has been adjudicated by this court in Burson v. Gresham, 221 Ga. 814 (147 SE2d 445), is that his confinement is in violation of his constitutional rights under the 5th and 6th Amendments to the United States Constitution. “Mere allegations that one has been denied a constitutional right, without setting forth facts substantiating a violation of. such right, is not a sufficient reason for setting aside a sentence on habeas corpus.” Salisbury v. Grimes, 223 Ga. 776 (1) (158 SE2d 412). Even a consideration of the grounds urged only in appellant’s brief does not reveal any reversible error. The record shows that the accused was represented by counsel when he voluntarily entered his plea of guilty to the two-count indictment charging him with murder and robbery by force and during the subsequent proceedings, even though they were held in the judge’s chambers, and authorizes the finding that he voluntarily concurred with the actions of his counsel, at least at the time they were performed.

Submitted March 11, 1970 Decided April 9, 1970. William H. Gresham, pro se. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion 0. Gordon, William B. Childers, Jr., Assistant Attorneys General, for appellee.

Therefore, the trial court did not err in its judgment remanding the petitioner to the custody of the appellee warden.

Judgment affirmed.

All the Justices concur.