Carl Kimbro v. C. Murray Henderson, Warden, Tennessee State Penitentiary

Sixth Circuit

Carl Kimbro v. C. Murray Henderson, Warden, Tennessee State Penitentiary

429 F.2d 1319, 1970 U.S. App. LEXIS 7681

CourtCourt of Appeals for the Sixth Circuit

DecidedAugust 17, 1970

Docket19979

StatusPublished

Cited by1 cases

This text of 429 F.2d 1319 (Carl Kimbro v. C. Murray Henderson, Warden, Tennessee State Penitentiary) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carl Kimbro v. C. Murray Henderson, Warden, Tennessee State Penitentiary, 429 F.2d 1319, 1970 U.S. App. LEXIS 7681 (6th Cir. 1970).

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Opinion

PER CURIAM.

Petitioner-appellant is serving a sentence for first degree murder committed in the perpetration of a robbery. The jury imposed a death sentence which was later commuted to a term of 99 years by the Governor of Tennessee. This is the fourth occasion petitioner has been before this Court in various habeas corpus proceedings. In Kimbro v. Bomar, 333 F.2d 755 (6th Cir. 1964), the judgment of the District Court denying a writ was affirmed. In Kimbro v. Heer, 364 F.2d 116 (6th Cir. 1966), his second application for a writ was denied by the District Court without an evidentiary hearing and we affirmed. This judgment was subsequently set aside and the Supreme Court, citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), remanded the case for an evidentiary hearing. Kimbro v. Heer, 386 U.S. 128, 87 S.Ct. 902, 17 L.Ed.2d 778 (1967). A hearing was held and the writ was again denied. On appeal, it appeared that the death of the court reporter prevented petitioner from obtaining a transcript of the hearing, and since a transcript was deemed necessary for proper appellate consideration, the case was remanded for another evidentiary hearing. Kimbro v. Henderson, 407 F.2d 1331 (6th Cir. 1969). This appeal is from the judgment of the District Court again denying petitioner’s application for a writ of habeas corpus.

At this second evidentiary hearing, evidence was introduced directed to the same issues as were raised in the initial evidentiary hearing and which were also essentially the same issues previously considered and found to be without merit by this Court in Kimbro v. Heer, 364 F. 2d 116 (6th Cir. 1966). Thus, district courts have on three occasions rejected petitioner’s contention on these issues. First, they were rejected without an evidentiary hearing and we affirmed the judgment on appeal. On the two subsequent occasions, the contentions were considered by the District Court following evidentiary hearings and no evidence was introduced that required any variance from the original denial of the writ. From a review of the present record we hold that the District Judge for the reasons stated in his opinion correctly denied the petition. Moreover, since the District Court’s decision, the issue of the validity of the search of petitioner’s automobile was decided adversely to petitioner in Chambers v. Maroney, 398 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, 1970.

We express appreciation to C. Benson Hufford, Jr., Esquire, court-appointed counsel, for his able presentation of petitioner’s case.

Judgment affirmed.

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PER CURIAM.

Petitioner-appellant is serving a sentence for first degree murder committed in the perpetration of a robbery. The jury imposed a death sentence which was later commuted to a term of 99 years by the Governor of Tennessee. This is the fourth occasion petitioner has been before this Court in various habeas corpus proceedings. In Kimbro v. Bomar, 333 F.2d 755 (6th Cir. 1964), the judgment of the District Court denying a writ was affirmed. In Kimbro v. Heer, 364 F.2d 116 (6th Cir. 1966), his second application for a writ was denied by the District Court without an evidentiary hearing and we affirmed. This judgment was subsequently set aside and the Supreme Court, citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), remanded the case for an evidentiary hearing. Kimbro v. Heer, 386 U.S. 128, 87 S.Ct. 902, 17 L.Ed.2d 778 (1967). A hearing was held and the writ was again denied. On appeal, it appeared that the death of the court reporter prevented petitioner from obtaining a transcript of the hearing, and since a transcript was deemed necessary for proper appellate consideration, the case was remanded for another evidentiary hearing. Kimbro v. Henderson, 407 F.2d 1331 (6th Cir. 1969). This appeal is from the judgment of the District Court again denying petitioner’s application for a writ of habeas corpus.

At this second evidentiary hearing, evidence was introduced directed to the same issues as were raised in the initial evidentiary hearing and which were also essentially the same issues previously considered and found to be without merit by this Court in Kimbro v. Heer, 364 F. 2d 116 (6th Cir. 1966). Thus, district courts have on three occasions rejected petitioner’s contention on these issues. First, they were rejected without an evidentiary hearing and we affirmed the judgment on appeal. On the two subsequent occasions, the contentions were considered by the District Court following evidentiary hearings and no evidence was introduced that required any variance from the original denial of the writ. From a review of the present record we hold that the District Judge for the reasons stated in his opinion correctly denied the petition. Moreover, since the District Court’s decision, the issue of the validity of the search of petitioner’s automobile was decided adversely to petitioner in Chambers v. Maroney, 398 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, 1970.

We express appreciation to C. Benson Hufford, Jr., Esquire, court-appointed counsel, for his able presentation of petitioner’s case.

Judgment affirmed.

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429 F.2d 1319, 1970 U.S. App. LEXIS 7681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carl-kimbro-v-c-murray-henderson-warden-tennessee-state-penitentiary-ca6-1970.

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