389 F.2d 990 (6th Cir. 1968), 17650, Nichols v. Henderson

Docket Nº:17650.
Citation:389 F.2d 990
Party Name:Claude W. NICHOLS, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.
Case Date:February 28, 1968
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 990

389 F.2d 990 (6th Cir. 1968)

Claude W. NICHOLS, Petitioner-Appellant,


C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 17650.

United States Court of Appeals, Sixth Circuit.

February 28, 1968

Vincent E. Wehby (Court Appointed), Nashville, Tenn., for appellant.

David W. McMackin, Asst. Atty. Gen., Nashville, Tenn., for appellee; Henry C. Foutch, Nashville, Tenn., on brief;

Page 991

George F. McCanless, Atty. Gen., and Reporter, State of Tenn., of counsel.

Before WEICK, Chief Judge, and PHILLIPS and COMBS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from the denial of a petition for writ of habeas corpus in which appellant sought to void his conviction for first degree murder for which he was sentenced to ninety-nine years in the State penitentiary.

The conviction was affirmed by the Supreme Court of Tennessee in a comprehensive opinion. Nichols v. State of Tennessee, 200 Tenn. 65, 289 S.W.2d 849. Parallel civil litigation in the State courts is reported at Anderson v. Nichols, 39 Tenn.App. 503, 286 S.W.2d 96, in which the Supreme Court of Tennessee denied certiorari. Reference is made to these reported opinions for a more complete recitation of facts. Facts will be stated here only to the extent necessary to dispose of the issues raised on this appeal.

As originally filed the petition raised two questions:

1. The jury in the State trial court was composed of only eleven qualified persons since one of the members of the jury had been convicted and rendered infamous and

2. The jury panel had been selected from the rural area of Humphreys County upon specific instructions of the State trial judge. As a result, the petitioner claims an alleged violation or infringement of his constitutional rights at the time of his trial in the State court.

District Judge William E. Miller conducted a full evidentiary hearing on these issues and made detailed findings of fact and conclusions of law.

The record discloses that one of the members of jury had been convicted of petit larceny and sentenced to imprisonment for one year. The conviction of this juror occurred approximately sixteen years prior to the Nichols trial.

Nichols personally employed four competent lawyers to represent him at the murder trial and on his appeal to the Supreme Court of Tennessee. The District Court found that before the jury retired to reach its verdict, at least one of Nichols' attorneys knew that the juror in question had been convicted of a felony. Nichols' counsel did not object to the qualifications of this juror until after the jury verdict...

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