634 F.2d 862 (5th Cir. 1981), 79-3492, Bryson v. State of Ala.

Docket Nº:79-3492.
Citation:634 F.2d 862
Party Name:Jesse William BRYSON, Plaintiff-Appellant, v. STATE OF ALABAMA, Circuit Court of Cherokee County, Centre, Alabama, Defendant-Appellee.
Case Date:January 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 862

634 F.2d 862 (5th Cir. 1981)

Jesse William BRYSON, Plaintiff-Appellant,


STATE OF ALABAMA, Circuit Court of Cherokee County, Centre,

Alabama, Defendant-Appellee.

No. 79-3492.

Unit B

United States Court of Appeals, Fifth Circuit

January 20, 1981

Page 863

Jack W. Smith, Dothan, Ala., for plaintiff-appellant.

Robert F. Tweedy, Jane Lecroy Brannon, H. Ward McMillan, Jr., Asst. Attys. Gen., Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before MORGAN, KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

This is an appeal from the district court's denial of a motion filed pursuant to 28 U.S.C. § 2254 for habeas corpus relief from a conviction and sentence imposed upon Jesse William Bryson by the Alabama state courts.

In February, 1972, a Gaylesville, Alabama, general store was allegedly robbed at gunpoint of approximately $400. In November, 1974, an Alabama jury convicted Bryson of participating in the crime and sentenced him to 40 years in the state penitentiary. The conviction was affirmed on appeal. Bryson v. State, 57 Ala.App. 278, 327 So.2d 916 (Ala.Cr.App.1975), cert. denied, 295 Ala. 393, 327 So.2d 919 (1976).

In April, 1978, Bryson applied to the Northern District of Alabama for a writ of habeas corpus. He contended, as he had in state court, that he was denied due process by the state district attorney's allegedly improper reference during trial to the fact that shortly before the robbery Bryson had

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escaped from a Georgia penitentiary where he had been serving time for a prior conviction. 1 After considering a responsive pleading by the state, which included a copy of the trial transcript and a reply by Bryson, the district court issued an opinion stating that in spite of what the court considered "a totally erroneous ruling by the trial court as to the admissibility of evidence of a previous offense," the error, in light of the overwhelming evidence of Bryson's guilt, did not render the trial fundamentally unfair, and thus did not permit an award of habeas corpus relief. The district court therefore denied the writ. The district court subsequently denied Bryson's motion for a certificate of probable cause to appeal because Bryson's efforts to perfect an appeal had not been timely made.

In September, 1979, Bryson filed another petition for habeas corpus. The district court concluded that the issue it presented was identical to the issue presented in the previous petition considered and ruled upon by the court. The court adhered to its ruling in the prior case and denied the petition without requiring the state to respond to a show cause order. See Moore v. Estelle, 526 F.2d 690, 696 (5th Cir.), cert. denied, 426 U.S. 953, 96 S.Ct. 3180, 49 L.Ed.2d 1192 (1976) (successive petitions subject to dismissal without hearing). Within thirty days Bryson filed a notice of appeal and a motion for certificate of probable cause. Finding the issue raised by the petition to be of "sufficient significance," the district court granted the motion. 2

As the district court concluded, the testimony as to Bryson's prior Georgia conviction and escape elicited by...

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