460 F.2d 210 (5th Cir. 1972), 71-2330, Conley v. Beto

Docket Nº:71-2330.
Citation:460 F.2d 210
Party Name:Michael D. CONLEY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Dept. of Corrections, Respondent-Appellee.
Case Date:May 16, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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460 F.2d 210 (5th Cir. 1972)

Michael D. CONLEY, Petitioner-Appellant,

v.

Dr. George J. BETO, Director, Texas Dept. of Corrections, Respondent-Appellee.

No. 71-2330.

United States Court of Appeals, Fifth Circuit.

May 16, 1972

Gerald T. Calhoun, Houston, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen. of Tex., Robert Darden, Asst. Atty. Gen., Austin, Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this petition for habeas relief Michael D. Conley contends certain evidence admitted at his trial was the product of coercive influences and an illegal arrest. We affirm the district court's denial of the petition.

Conley was convicted in a Texas state court of stealing an electrical blender and a television set from the Southland Hardware Store in Houston, Texas. This offense is a felony under Texas law, 1 and since Conley had two previous felony convictions he was mandatorily sentenced to a term of life imprisonment under Article 63 of the Vernon's Ann. Texas Penal Code. After appealing unsuccessfully to the Court of Criminal Appeals of Texas, 2 Conley petitioned for a writ of habeas corpus in federal district court. The district judge granted relief, but on appeal this court reversed and remanded so that Conley might apply to the state courts for an evidentiary

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hearing. Beto v. Conley, 5 Cir. 1968, 393 F.2d 497, following this court's earlier decision in Texas v. Payton, 5 Cir. 1968, 390 F.2d 261. However, the Texas state courts refused to grant Conley an evidentiary hearing and he again brought a habeas petition in federal district court. After holding an evidentiary hearing the district judge denied relief, 328 F.Supp. 49, and this appeal followed.

The events which led to Conley's arrest began on September 11, 1963, when Houston police officers received a call to investigate a felony theft from the House of Television. An employee of the store stated that a woman had entered the store and engaged a salesman in a conversation about the purchase of a television. While the salesman was distracted a man entered the store, picked up a Zenith radio, and left without paying. The man with the radio then drove away accompanied by...

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