Morton v. Henderson

• Decision Date: 17 October 1967
• Docket Number: No. 17656.,17656.
• Citation: 389 F.2d 699
• Parties: Hollis MORTON, Petitioner-Appellant, v. C. Murray HENDERSON, Warden Tennessee State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 699 (1967)

Hollis MORTON, Petitioner-Appellant, v. C. Murray HENDERSON, Warden Tennessee State Penitentiary, Respondent-Appellee.

No. 17656.

United States Court of Appeals Sixth Circuit.

October 17, 1967.

Hollis Morton, in pro per.

David W. McMackin, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., for appellee, on brief, George F. McCanless, Atty. Gen., of counsel.

Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit Judges.

PER CURIAM.

This appeal is from an order of the District Court denying without an oral hearing appellant Morton's amended petition for a writ of habeas corpus. It was submitted to this Court on briefs, without oral argument. Morton had been granted leave to appeal in forma pauperis and his brief was filed pro se.

Morton was convicted by a jury in the Circuit Court of Maury County, Tennessee, of murder in the first degree, and was sentenced to imprisonment in the state penitentiary for ninety-nine years. He had been represented at the trial by three lawyers employed by his family. The judgment of conviction was affirmed by the Supreme Court of Tennessee in a written opinion, which carefully considered all of the questions then raised. Thereafter, he filed a habeas corpus petition in the Circuit Court of Davidson County, which was dismissed after a full evidentiary hearing at which he was represented by counsel appointed by the Court. An appeal was taken to the Supreme Court of Tennessee, which again affirmed in a written opinion, in which it held that no constitutional right of Morton had been violated in his trial and conviction.

The District Court ruled that the petition for habeas corpus did not set forth facts sufficient to justify the granting of relief. An amended petition was then filed, which the Court considered and denied.

The opinions of the Tennessee Courts disclose the following facts. In the evening of September 6, 1963 Morton escaped from the Maury County workhouse and returned to his home where he went to bed. It was his second escape from the penal institution. A constable and two state highway patrolmen went to Morton's home with a warrant for his arrest. After the constable had identified himself and demanded that Morton come out of the house, Morton shot through a window and killed the constable.

Morton's defense was that he shot the constable thinking he was a burglar about to enter his home. The trouble with this contention was that not only did the two state highway patrolmen testify that the constable called out his name and stated that he had a warrant for Morton's arrest, but Morton's wife and 17-year old son, who were in the house with him, heard what the constable said and corroborated the patrolmen's testimony. They (Morton's wife and 17-year old son) asked Morton whether they should open the door, and he said, "No". The trial court properly submitted the issues of fact to the jury and its instructions have been approved on appeal.

In his post conviction proceedings, Morton complained about inadequate...