Opinion · Court of Appeals for the Fifth Circuit
Leon Bennie Elliott v. Dr. George J. Beto, Director, Texas Department of Corrections
474 F.2d 856
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1973-05-14
- Topic
- general
PER CURIAM: This appeal is from the denial of ha-beas corpus relief. Appellant is presently serving a 40-year Texas state sentence for assault with intent to rape, following a jury verdict of guilty. He contends that his confession, introduced at the trial, was involuntary; that a one-man lineup in the absence of counsel was violative of due process; and that the use of perjured testimony by the prosecution and its failure to correct it deprived him of a fair trial. The Federal District Court found no merit to these contentions. We affirm.
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- Authority status
- pending
- Cited by
- 12 opinions
ELLIOTT v. BETO,474 F.2d 856(5th Cir. 1973)
LEON BENNIE ELLIOTT, PETITIONER-APPELLANT, v. DR. GEORGE J. BETO, DIRECTOR,
TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE.
No. 72-3062.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
February 12, 1973.
Rehearing Denied March 13, 1973.
Certiorari Denied May 14, 1973.
Crawford Martin, Atty. Gen., Guy C. Fisher, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
[2] A proper determination of the voluntariness of appellant's confessionPage 857was made by the State Trial Court which comported with the requirements of Jackson v. Denno,378 U.S. 368,84 S. Ct. 1774,12 L.Ed.2d 908(1964). In the evidentiary hearing at which appellant testified, the Federal District Judge also had before him the complete transcript of the hearing on the issue of voluntariness as well as the transcript of the State trial proceedings. He held that the confession was voluntary. This finding was corroborated by the Federal District Judge's personal appraisal of appellant's lack of credibility because of several conflicts in his testimony. We agree with the District Judge's finding.
[3] The offense for which appellant was convicted occurred on February 28, 1967. Independent identification of appellant, by the complaining witness and by another woman whom appellant had accosted and threatened at gunpoint, was made a few hours after the separate incidents had occurred. The proper standard applicable at that time (prior to United States v. Wade,388 U.S. 218,87 S.Ct. 1926,18 L.Ed.2d 1149(1967)), for determining whether the method employed to identify a suspect violated due process was a consideration of the totality of the circumstances surrounding the confrontation. Stovall v. Denno,388 U.S. 293,87 S.Ct. 1967,18 L.Ed.2d 1199(1967).See alsothe recent Supreme Court decision, Neil v. Biggers,409 U.S. 188,93 S.Ct. 375,34 L.Ed.2d 401(1972). Applying the totality of circumstances test, we agree that there was no deprivation of due process.
[4] In the absence of a showing that the prosecution knowingly and intentionally used material, perjured testimony to obtain a conviction, appellant is entitled to no post-conviction relief even where testimony is perjured. Jackson v. United States, 5 Cir., 1967,384 F.2d 375-376.A fortiori,there can be no such relief where there is no perjury. The District Court found none; nor do we.
[5] Affirmed.Page 858
- Rule 18, 5 Cir.;seeIsbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. ↩