Gray v. Johnson

• Citation: 354 F.2d 986
• Decision Date: 28 March 1966
• Docket Number: No. 16267.,16267.
• Parties: Otie GRAY, Petitioner-Appellant, v. Wilburn C. JOHNSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

354 F.2d 986 (1965)

Otie GRAY, Petitioner-Appellant, v. Wilburn C. JOHNSON, Warden, Respondent-Appellee.

No. 16267.

United States Court of Appeals Sixth Circuit.

November 29, 1965.

Certiorari Denied March 28, 1966.

Robert J. Warner, Jr. (Court Appointed), Nashville, Tenn., for appellant.

Ed R. Davies, Nashville, Tenn., for appellee.

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

Certiorari Denied March 28, 1966. See 86 S.Ct. 1232.

PER CURIAM.

This is an appeal from a judgment of the District Court dismissing appellant's petition for a writ of habeas corpus. On October 20, 1954 appellant Gray was convicted in the Circuit Court of Union County, Tennessee, on a plea of guilty, for murder in the first degree, and was sentenced to 99 years' imprisonment. After denial of his petition for writ of habeas corpus by the Supreme Court of Tennessee, appellant filed a petition for writ of habeas corpus in the United States District Court alleging violations of his constitutional rights.

Appellant contended that his signed confession wherein he admitted drowning his wife, was coerced by the arresting sheriff who kicked and abused him until he signed the confession in order to obtain relief from such treatment; that he was denied his right to counsel when the sheriff refused to grant his request to see an attorney until after the confession was signed; that the plea of guilty entered by his retained attorney was unauthorized; and that he did not realize that a guilty plea had been entered until he was sentenced.

The District Court held a hearing at which appellant, the state prosecuting attorney and Judge, and one of appellant's attorneys, testified. The Court found that appellant failed to sustain his burden of proving any violation of his constitutional rights. Specifically, the Court found that appellant did not establish by a preponderance of the evidence that his confession was coerced without benefit of counsel. The Court further found that even if coercion in obtaining the confession had been established, that fact would not sustain appellant because of his subsequent plea of guilty, which was freely and voluntarily made upon advice of his own counsel.

A petitioner in a habeas corpus proceeding must prove his allegations by a preponderance of the evidence. Fiedler v. Shuttleworth, 153 F.2d 999 (6th Cir. 1946).

Findings of fact of the District Court will not be set aside on appeal unless clearly erroneous. Due consideration must be given to the lower court's determination of the credibility of witnesses. United States ex rel. Piscione v. Lehmann, 234 F.2d 810 (6th Cir. 1956).

This Court need only determine if there is substantial evidence in the record to support the result below. Here the only evidence of the alleged coerced confession was appellant's uncorroborated testimony at the habeas corpus hearing that the arresting sheriff kicked and abused him. No witnesses were present at the time. The sheriff has since died. Appellant made no complaint concerning this incident until about five years after his conviction. Appellant had never informed his retained attorneys of his alleged mistreatment by...