Mitchell v. Henslee, No. 17208.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 332 F.2d 16
• Parties: Lonnie MITCHELL, Appellant, v. Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Appellee.
• Docket Number: No. 17208.
• Decision Date: 04 May 1964

332 F.2d 16 (1964)

Lonnie MITCHELL, Appellant,
v.
Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Appellee.

No. 17208.

United States Court of Appeals Eighth Circuit.

May 4, 1964.

Christopher C. Mercer, Jr., Little Rock, Ark., made argument for appellant and filed brief with Delector Tiller, Little Rock, Ark.

Jack L. Lessenberry, Asst. Atty. Gen., Little Rock, Ark., made argument for appellee and filed brief with Bruce Bennett, Atty. Gen., Little Rock, Ark.

Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and GIBSON, District Judge.

PER CURIAM.

The appeal is from an order denying an application for a writ of habeas corpus, Mitchell v. Henslee, D.C.E.D.Ark., 208 F.Supp. 533. Appellant is under a sentence of death by the courts of Arkansas for a conviction of rape. He is a Negro and was 23 years of age at the time of the offense. His claims of constitutional violation involve in part charges of racial discrimination in relation to his conviction and sentence.

The conviction was affirmed by the Supreme Court of Arkansas in Mitchell v. State, 230 Ark. 894, 327 S.W.2d 384. The overruling of a subsequent motion to vacate the judgment was affirmed in Mitchell v. State, 232 Ark. 371, 337 S.W. 2d 663. The denial of a writ of habeas corpus was affirmed in Mitchell v. State ex rel. Henslee, 233 Ark. 578, 346 S.W.2d 201. Also, the Court denied appellant leave to file in the trial court a petition in the nature of a writ of error coram nobis (unreported order) in a further attempt to obtain a hearing on his claims.

The claims of violation of due process and equal protection were first asserted in appellant's collateral attacks. The

332 F.2d 17

Arkansas Supreme Court held that they could and should have been raised in his appeal from conviction, and that he was not entitled to any other consideration of them. The District Court similarly held as to three of the claims that appellant's failure to assert the constitutional violations in his appeal from conviction effected a waiver of them as grounds for federal relief

While the District Court ruled upon each of appellant's claims as not affording basis for federal relief, it also declared that, since appellant had not petitioned for certiorari on any of the Arkansas Supreme Court's judgments and orders, he had not exhausted his state remedies, and that "this Court must and does find that there are no exceptional circumstances involved in this case which would allow this Court to consider this matter in view of the rule of Darr v. Burford", 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. The Court seems to have dealt with this aspect alternatively, since it had precedingly made ruling on each of the claims. We shall confine ourselves to the rulings on the claims, since the subsequent abandonment by the Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L.Ed.2d 837, of the holding in Darr as to the necessity of a state prisoner's petitioning for certiorari to some judgment or order of the State's highest court rejecting his constitutional claims in order for an exhaustion of state remedies to exist, makes unnecessary any discussion of that aspect.

In ruling that none of appellant's claims afforded a basis for federal habeas corpus relief, the District Court made resort solely to the record of the state court proceedings, holding that this was sufficient on which to predicate federal denial and "therefore * * * there is no necessity for this Court to hold a hearing for the purpose of receiving evidence."

The first claim of constitutional violation was that the imposing of the death penalty against appellant rested on racial discrimination in the administration of the State's...