Ex parte Binder, 69209
Decision Date | 23 November 1983 |
Docket Number | No. 69209,69209 |
Citation | 660 S.W.2d 103 |
Parties | Ex parte Johnny BINDER. |
Court | Texas Court of Criminal Appeals |
This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.
The habeas court after a hearing made the following finding of facts pertinent to the issue before us:
Applicant, relying on Whitmore v. State, 570 S.W.2d 889 (Tex.Cr.App.1976), requests that we grant him a new trial on the basis of newly discovered evidence.
Respondent State vigorously asserts that habeas corpus relief has never been granted by this Court on the basis of newly discovered evidence. The State correctly notes that "Whitmore is clearly distinguishable since it involves an appeal from the denial of appellant's motion for new trial and not a collateral attack upon a valid conviction." 1
The State points us to several federal cases standing for the proposition that claims of newly discovered evidence, standing alone, are not a fit subject for habeas corpus review.
In Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), the United States Supreme Court noted:
Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir.1958), also involved newly discovered evidence in the form of a confession by a purported participant in the crime for which an applicant was convicted. The court stated:
In Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir.1977), the circuit court relied on both Townsend and Shaver in reaching its conclusion:
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