323 F.2d 662 | 5th Cir. | 1963
Lead Opinion
This is an appeal from the denial of a petition for writ of habeas corpus. Appellant alleged that he had been deprived of his constitutional rights in that his State conviction was obtained with the knowing use of perjured testimony, and that the trial was held without his being afforded an opportunity to consult with counsel in order to prepare an adequate defense. This appeal is from his fourth denial of a petition for a writ of habeas corpus in the federal courts. Each petition was denied without having a hearing.
The denial of the instant petition is dated August 28, 1962, and states as reasons for such denial:
“Unless it is considered otherwise in the interest of justice, a Petition for Writ of Habeas Corpus which presents grounds that have been previously presented or which could have been presented on a previous Petition before a federal habeas corpus court need not be later considered after being previously rejected. Title 28 U.S.C.A., Sec. 2244; McCoy v. Tucker, 4 Cir., 259 F.2d 714; Broadus-Bey v. Diamond, 6 Cir., 264 F.2d 242. No new grounds are here presented.
“In light of the decision by Honorable Ben C. Connally, United States District Judge, on a similar Petition for Writ of Habeas Corpus,*663 ■dated April 27,1961, from which decision an appeal would lie, Title 18, U.S.C.A. Sec. 1915, the instant Petition for Writ of Habeas Corpus is denied. Title 28, U.S.C.A. Sec. 2244.”
The denial of relief and reasons given were undeniably correct at the time the above order was entered. Since that time, however, the Supreme Court in a "“guideline” decision
Reversed and remanded.
. Townsend v. Sain, 1963, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770. Cf. Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, relating to similar relief under 28 U.S.C.A. § 2255. And see generally “Whither: On Habeas Corpus” and cases therein discussed by John O. Tyson HI, July 1963 issue of “The Alabama Lawyer.”
Concurrence Opinion
(concurring in the result).
I concur in the result because of the sentence reading: “The denial of relief and reasons given were undeniably correct at the time the above order was entered.” To me that sentence seems an •unnecessary criticism of the Supreme Court decisions in Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770, and Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. I feel very strongly that this Court should not lend itself to the current, almost hysterical, movement on the part of some members of the Bar to cast ■discredit upon opinions and decisions of the Supreme Court of the United States. I, therefore, concur in the result.