Turnbow v. Beto

• Decision Date: 20 February 1970
• Docket Number: No. Civ. A. 2-752.,Civ. A. 2-752.
• Parties: James Faldon TURNBOW, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Texas

309 F. Supp. 957

James Faldon TURNBOW, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

No. Civ. A. 2-752.

United States District Court, N. D. Texas, Amarillo Division.

February 20, 1970.

No attorneys for petitioner.

Allo B. Crow, Jr., Asst. Atty. Gen. of Texas, Austin, Tex., for respondent.

MEMORANDUM OPINION

WOODWARD, District Judge.

Petitioner, James Faldon Turnbow, is in the custody of respondent pursuant to a judgment and sentence of the District Court of Hutchinson County, Texas, wherein petitioner was convicted on July 18, 1957, after a plea of not guilty, of the felony offense of rape. Punishment was assessed by the jury at confinement in the State Penitentiary for a term of not less than five years nor more than ninety-nine years. Although petitioner states that he appealed from the conviction in 1957, the record indicates that no appeal was taken. Petitioner apparently has confused an appeal with his application for writ of habeas corpus.

Petitioner presents his second application for writ of habeas corpus to this Court. The first application, filed as Civil Action No. 2-663, was dismissed by order of this Court on February 18, 1969. This second application, which is here under consideration, contains new allegations as well as a repetition of the allegations in the first application. This piecemeal approach adopted by petitioner constitutes an abuse of the habeas corpus procedure and normally would justify dismissal. Haith v. United States, 330 F.2d 198 (3d Cir. 1964). However, it appears that petitioner intended to have this second application serve as a motion for rehearing or an appeal from the Court's first decision; consequently, the Court has treated it as such and has re-examined the allegations presented for a second time as well as its order in Civil Action No. 2-663. After re-examination, the Court has reached the conclusion that its order in Civil Action No. 2-663, a copy of which is appended to this opinion, was correct and therefore now deems it unnecessary to cover the same issues for the second time. Accordingly, the Court will examine, in this case only, the new allegations raised by petitioner, which are:

1. That petitioner's case was publicized so extensively by the news media that he was denied a fair trial by an impartial jury, free from outside influences, as required by due process.

2. That perjured testimony was employed by the prosecution in petitioner's case to secure his conviction, in violation of due process requirements.

In an attempt to answer petitioner's first allegation, counsel for respondent conducted an investigation into the news coverage surrounding petitioner's trial. He was able to find only three news articles relating to the case. After these news articles were presented to the Court, petitioner informed the Court that there was at least one more article relating to his case. The Court then conducted an independent investigation. After all possibilities were exhausted, the following articles, copies of which are appended to this opinion, were uncovered:

1. Borger News-Herald, February 1, 1957: About the arrest and confession of petitioner.

2. Amarillo Globe-News, February 2, 1957: About the arrest and charge of petitioner.

3. Borger News-Herald, July 17, 1957: About selection of the jurors in petitioner's case.

4. Borger News-Herald, July 19, 1957: About conviction and sentence of petitioner.

5. Amarillo Globe-News, July 20, 1957: About conviction and sentence of petitioner.

The last two articles were printed after the petitioner had been convicted and could not have influenced the trial.

The newspapers mentioned above are the newspapers of general distribution in Hutchinson County, Texas, where petitioner was tried. An examination of the stories that appeared in these papers clearly shows that the community was not saturated with inherently prejudicial publicity before or during petitioner's trial. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1965). In fact, the only news article that possibly could have been prejudicial was the article published by the Borger News-Herald on February 1, 1957. In that story, petitioner was reported to have confessed. However, this article was published at least five months before the trial and the probability that it alone could have saturated the community with prejudicial publicity is too unlikely to be considered. Finally, it should also be observed that, if petitioner or his appointed counsel thought the news media had so inflamed the community that a fair trial was not possible, there should have been a motion for a change of venue. However, petitioner neither alleges nor does the record reflect that such a motion was ever made to the State Court. Therefore, the Court is of the opinion that petitioner was afforded a fair trial free from outside influences and that his first allegation is without merit.

In his other allegation, petitioner claims a denial of due process based upon the existence of prejudicial perjured testimony. He asserts specifically that his conviction was predicated upon his daughter's testimony, which was perjured at the instigation of the prosecuting attorney. However, an examination of the application reveals no factual allegation to support petitioner's contention. Instead, the Court is able to find only conclusionary statements which are completely insufficient to show the denial of any federal right. Harris v. Ellis, 204 F.2d 685 (5th Cir. 1953). Further, where there has been no appeal from a judgment of conviction, specific factual allegations are especially necessary when allegations of perjury are made. Gingrich v. Oberhauser, 305 F.Supp. 738 (C.D.Cal.1969). In light of these circumstances, the Court finds no merit in petitioner's second allegation.

It is accordingly ORDERED and DECREED that petitioner's application for writ of habeas corpus be and is hereby denied.

The Clerk shall send copies of this order to the petitioner and the attorney for the respondent.

APPENDIX I

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

JAMES FALDON TURNBOW, | Petitioner | vs. | > CIVIL ACTION NO. 2-663 DR. GEORGE J. BETO, DIRECTOR, | TEXAS DEPARTMENT OF CORRECTIONS, | Respondent |

ORDER

Petitioner, James Faldon Turnbow, is in custody of the Respondent pursuant to a judgment and sentence of the District Court of Hutchinson County, Texas, wherein the petitioner was convicted on July 18, 1957, on his plea of not guilty to the felony offense of rape. Punishment was assessed by the jury at confinement in the State penitentiary for a term of not less than five years nor more than ninety-nine years.

Giving a liberal interpretation to the petitioner's application in this Court, the Court finds that the petitioner has alleged the following grounds for relief:

1. That he was deprived of his constitutional rights by being forced to sign a statement which he could not read, not having been previously warned of his rights and having been denied the right to talk to an attorney.

2. That he was subjected to cruel and unusual punishment by the arresting officers who allegedly beat him, cursed him, and threatened his life, and later by jail inmates who were allegedly acting under the direction of the officers.

3. That he had been arrested without a warrant and without allowing him to confront the witnesses against him.

4. That he was not allowed an examining trial.

5. That he was denied counsel for three and one-half to four months.

6. That his court-appointed counsel was "inefficient."

In regard to the petitioner's ground for relief based upon an alleged coerced confession, the petitioner has not alleged,...