424 F.2d 665 (6th Cir. 1970), 19452, Jenkins v. Kropp

Docket Nº:19452.
Citation:424 F.2d 665
Party Name:Sidney JENKINS, Petitioner-Appellant, v. George A. KROPP, Warden, State Prison of Southern Michigan, Respondent-Appellee.
Case Date:April 15, 1970
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 665

424 F.2d 665 (6th Cir. 1970)

Sidney JENKINS, Petitioner-Appellant,

v.

George A. KROPP, Warden, State Prison of Southern Michigan, Respondent-Appellee.

No. 19452.

United States Court of Appeals, Sixth Circuit.

April 15, 1970

Page 666

James K. Nelson (Court Appointed), Cincinnati, Ohio, for appellant.

Lawrence M. Glazer, Lansing, Mich., Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Atty. Gen., Lansing, Mich., on the brief, for appellee.

Before EDWARDS, McCREE and COMBS, Circuit Judges.

PER CURIAM.

We consider an appeal from an order dismissing a petition for a writ of habeas corpus which alleged unlawful detention pursuant to conviction of murder and armed robbery in the Genesee County, Michigan Circuit Court. Petitioner-appellant is serving concurrent sentences of life and 35 to 50 years.

The District Judge considered only the allegation of denial of a fair trial because of prejudicial news media publicity because he found that petitioner had not exhausted state remedies still available to correct the other claimed constitutional deprivations. We agree that the issue of claimed prejudicial publicity was the sole issue properly presented by the petition.

This contention was made in petitioner-appellant's direct appeal and was rejected by the Michigan Court of Appeals. People v. Jenkins, 10 Mich.App. 257, 159 N.W.2d 225 (1968). The District Court did not conduct an evidentiary hearing, but instead adopted the findings of the Michigan Court of Appeals that the contentions of prejudicial news media publicity were without merit.

However, the District Court did not examine the trial transcript (which we are advised is available) upon which the state court based its findings and conclusions.

In an appeal in which the findings of a state court based on a post-conviction evidentiary hearing were adopted by a district judge without an examination of a transcript of the hearing, this court quoted the following language from Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963):

'Where the fundamental liberties of the person are claimed to have been infringed, we carefully scrutinize the state-court record. The duty of the Federal District Court on habeas is no less exacting. '* * * Even if all the relevant facts were presented in the state-court hearing, it may be that...

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