Opinion · Court of Appeals for the Eleventh Circuit

Thomas Swindle v. Leoneal Davis, Warden and the Attorney General of the State of Alabama

Thomas Swindle v. Leoneal Davis, Warden & the Att’y Gen. of the State of Ala., 846 F.2d 706 (11th Cir. 1988)

Type: Opinion
Court: Court of Appeals for the Eleventh Circuit
Jurisdiction: Federal
Date: 1988-06-08
Topic: litigation

How later courts describe this case

“Newly discovered evidence which goes only to the guilt or innocence of the petitioner is not sufficient to require habeas relief.”

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UpLaw has not yet analyzed Thomas Swindle v. Leoneal Davis, Warden and the Attorney General of the State of Alabama. The absence of a flag is not a finding that it is good law.

Authority status: pending
Cited by: 12 opinions

SWINDLE v. DAVIS,846 F.2d 706(11th Cir. 1988)

THOMAS SWINDLE, PETITIONER-APPELLANT, v. LEONEAL DAVIS, WARDEN AND THE

ATTORNEY GENERAL OF THE STATE OF ALABAMA, RESPONDENTS-APPELLEES.

No. 87-7635.

United States Court of Appeals, Eleventh Circuit.

June 8, 1988.

Page 707

L. Dan Turberville, Birmingham, Ala., for petitioner-appellant.

Don Siegelman, Atty. Gen., J. Anthony McLain, Sp. Asst. Atty. Gen., McLain Hampton, Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, HILL and EDMONDSON, Circuit Judges.

PER CURIAM:

[1] Appellant, Thomas Swindle, was convicted of manslaughter in Tuscaloosa County, Alabama and was sentenced to twelve years of imprisonment. He filed a petition pursuant to18 U.S.C. § 2254in the district court alleging several grounds for relief. The court adopted the report and recommendation of the magistrate, and granted summary judgment in favor of the defendants. On appeal, appellant argues that genuine issues of material fact exist concerning his claim of newly discovered evidence. We affirm the judgment of the district court.

[2] The magistrate and district court correctly recognized that federal habeas relief is available on the grounds of newly discovered evidence only where the evidence bears on the constitutionality of the petitioner's detention.See Townsend v.Sain,372 U.S. 293,83 S.Ct. 745,9 L.Ed.2d 770(1963). Newly discovered evidence which goes only to the guilt or innocence of the petitioner is not sufficient to require habeas relief.Smithv. Wainwright,741 F.2d 1248(11th Cir. 1984),cert. denied,470 U.S. 1087,105 S.Ct. 1853,85 L.Ed.2d 150(1985). Appellant's newly discovered evidence consists of testimony that the victim was killed by another individual in an altercation which followed the appellant's altercation with the victim. This evidence clearly goes to the question of Swindle's guilt or innocence. He concedes that the state was unaware of this evidence at the time of trial and that the state did not solicit false evidence. Thus, the newly discovered evidence does not bear on the constitutionality of appellant's incarceration and this claim does not establish a ground for habeas relief.

[3] In an attempt to establish a constitutional violation appellant also argues that he was denied effective assistance of counsel because his trial counsel failed to discover and present this new evidence. As the magistrate and district court found, appellant's allegation failed to show that his counsel's efforts fell below an objective standard of reasonableness or that any error might have affected the fairness of his trial.Strickland v.Washington,466 U.S. 668,104 S.Ct. 2052,80 L.Ed.2d 674(1984). Thus, appellant's claim of ineffective assistance of counsel is without merit.

[4] For the foregoing reasons, the judgment of the district court is

[5] AFFIRMED.