Opinion
No. 15523.
May 22, 1964.
Appeal from the United States District Court for the Western District of Kentucky, Roy M. Shelbourne, District Judge, D.C., 221 F. Supp. 112.
John P. Sandidge, Louisville, Ky. (John P. Sandidge; Woodward, Hobson Fulton, James A. Crumlin, Louisville, Ky., on the brief), for appellant.
Ray Corns, Asst. Atty. Gen., Frankfort, Ky. (John B. Breckinridge, Atty. Gen., Frankfort, Ky., on the brief), for appellees.
Before WEICK, Chief Judge, CECIL, Circuit Judge, and WILLIAM E. MILLER, District Judge.
Appellant, a state prisoner under a death sentence for murder imposed by the Circuit Court of Fayette County, Kentucky, appeals from a judgment of the United States District Court for the Western District of Kentucky, entered after a plenary hearing, dismissing his petition for a writ of habeas corpus.
Appellant contends on appeal, as he did in the District Court, that his Constitutional rights under the Fourteenth Amendment were violated during his trial in the Fayette Circuit Court by the method used in the selection of the trial jury; by the court clerk's deliberate and purposeful "skipping" the name of a Negro on the jury list when the jury was being impaneled; by the trial judge's granting requests without legal excuse of two Negro veniremen to be excused from jury service; by the trial judge's hearing of evidence in Appellate's absence concerning the propriety of participation in the trial by a newly-appointed assistant prosecuting attorney who had formerly represented a co-defendant in the case; by his court-appointed attorney's abandonment of the case while it was on appeal; and by the failure or refusal of the warden of the penitentiary to send to the Supreme Court of the United States a document designated by Appellant as a "Timely Reply" while his petition for certiorari was pending.
District Judge Shelbourne, in a well-considered memorandum stating his findings of fact and conclusions of law, rejected these contentions after hearing the testimony of Appellant, the trial judge, the clerk of the trial court, the prosecuting attorney, Appellant's trial attorney, the warden of the state penitentiary, the three Negroes who were on the venire, and the deputy clerk of the trial court who was in attendance when the jury was impaneled.
Upon careful consideration of the record, the briefs and oral argument, we find no error in the proceedings below. The District Judge's findings of fact are supported by an overwhelming preponderance of the evidence and his conclusions of law are correct.
Accordingly, the judgment of the District Court is affirmed.
The Court expresses its appreciation to Honorable John P. Sandidge and Honorable James A. Crumlin of the Louisville Bar, appointed counsel, who have ably and vigorously represented Appellant throughout the proceedings in the District Court and on the appeal.