Morris v. Mayo, 17924.

Citation277 F.2d 103
Decision Date14 April 1960
Docket NumberNo. 17924.,17924.
PartiesCharles MORRIS, Appellant, v. Nathan MAYO, Custodian, Florida State Prison, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Charles Morris, in pro. per.

George R. Georgieff, Asst. Atty. Gen., Richard W. Ervin, Atty. Gen., of Florida, for appellee.

Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is a habeas corpus proceeding under 28 U.S.C.A. § 2254 for relief from a state court conviction. The district judge denied the writ. We affirm.

Petitioner, Charles Morris, a white man, was convicted of the rape of a fourteen year old Negro girl. The jury recommended mercy. After a motion for a new trial was denied, he was sentenced to life imprisonment1 by the Circuit Court of Clay County, Florida, on December 14, 1953. The petitioner took no appeal. The court reporter, therefore, did not transcribe his shorthand record of the testimony. Later, the reporter left the state. His shorthand notes taken at the trial have not been located after a diligent search by the petitioner's attorneys and by the Clerk of Court.

August 18, 1956, Morris petitioned the Eighth Judicial Circuit Court, Union County, Florida, for a writ of habeas corpus. He asserted that the issue before the court was "the validity of the indictment". He contended that the indictment was invalid because it did not bear the endorsement of the foreman of the grand jury that it was a true bill. By amendment to his petition Morris alleged that he was convicted "upon evidence which did not support the conviction". Morris admitted carnal knowledge but denied that he had used force. The Circuit Court denied the writ. The Supreme Court of Florida affirmed the judgment and denied a rehearing. Morris v. State, Fla., 1956, 91 So.2d 640. The Supreme Court of the United States denied certiorari. Morris v. State of Florida, 1957, 352 U.S. 1009, 77 S.Ct. 576, 1 L.Ed.2d 555.

In May 1959 Morris petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus based on the allegations that: (1) the indictment was illegal, because it was not endorsed as a true bill by the foreman of the grand jury; (2) he was not furnished a copy of the transcript of the trial testimony upon his request as is required by Florida law; (3) the evidence was insufficient to support the conviction. After an examination of the original indictment and a careful consideration of the issues reached by the petition, but without a hearing, the district judge denied the writ of habeas corpus and the certificate of probable cause necessary for an appeal under 28 U.S.C.A. § 2253.

The district court found that "his main complaint * * * that he was proceeded against under an illegal indictment" had no basis in fact. The apparent error resulted from the Attorney General of Florida supplying a certified copy of the indictment that failed to include the cover of the indictment. The original indictment clearly bears the endorsement of the Foreman of the Grand Jury. As to the failure of the State of Florida to furnish Morris a copy of the transcript, as required by Florida law, the district court agreed with the construction placed on the law by the Florida courts: a reasonable construction requires that a copy of the transcript be furnished only for purposes of appeal. We consider it unnecessary to decide this question, since in this proceeding the appellee has accepted the petitioner's version of the testimony. Finally, the district court found: "Petitioner further complains of the insufficiency of the evidence and certain procedural errors at the trial. All these questions might have been raised upon appeal, but cannot be reached by habeas corpus." The court below concluded that the petitioner exhausted his state remedies. This holding is consistent with the district court finding that the petitioner attacked the sufficiency of the evidence.

In the interest of giving full effect to the Great Writ, if necessary erring on the side of the prisoner, this Court, on July 6, 1959, entered an order granting the certificate of probable cause on the ground that if there was no evidence at all to support the conviction, the judgment was reviewable collaterally on a writ of habeas corpus.2

We are of the opinion that, accepting as true the petitioner's version of the evidence, even his highly selective choice of facts shows conflicts on the question of force indicating to us that he complains of the insufficiency of the evidence rather than of the complete lack of evidence of guilt.

There is indeed a hair-line distinction between reviewing a record to determine if there is no evidence to support a conviction and reviewing a record to determine if there is insufficient evidence. It is not necessary, however, for the Court to determine whether the...

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4 cases
  • Picard v. Connor 8212 96
    • United States
    • U.S. Supreme Court
    • December 20, 1971
    ...of a claim that it results in an unconstitutional discrimination. See Rose v. Dickson, 327 F.2d 27, 29 (CA9 1964); Morris v. Mayo, 277 F.2d 103 (CA5 1960). The judgment of the Court of Appeals is therefore reversed, and the case is remanded to that court for further proceedings consistent w......
  • United States v. Wiman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 29, 1962
    ...been raised in the state tribunal * * *" Darr v. Burford, 1950, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761; see also, Morris v. Mayo, 5 Cir., 1960, 277 F.2d 103, 105. The three remaining claims to which this appeal is limited may be conveniently listed as (1) evidence illegally obtained;......
  • Rose v. Dickson, 18670.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 27, 1964
    ...which appellant asks the federal District Court to resolve. Cf. Kirby v. Warden, 296 F.2d 151, 152 (4th Cir. 1961); Morris v. Mayo, 277 F.2d 103, 105 (5th Cir. 1960). The record discloses the issues raised by appellant in two proceedings in the state courts: (1) an appeal from the judgment ......
  • Young v. Boles
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 5, 1965
    ...Pennsylvania, 316 F.2d 841, 842 (3 Cir. 1963), cert. denied DeMoss v. Rundle, 375 U.S. 859, 84 S.Ct. 123, 11 L.Ed.2d 85; Morris v. Mayo, 277 F.2d 103, 104 (5 Cir. 1960). At all events, the probative strength of the evidence has never been permitted to be an issue in habeas corpus. Meyers v.......

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