Horace Comage v. William S. Neil, Warden, Tennessee State Penitentiary

438 F.2d 530

Horace COMAGE, Petitioner-Appellant,
v.
William S. NEIL, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 20582.

United States Court of Appeals, Sixth Circuit.

March 24, 1971.

Appeal from the United States District Court for the Western District of Tennessee, Western Division; Robert M. McRae, Jr., Judge.

Horace Comage, in pro. per.

James M. Tharpe, Special Counsel State of Tennessee, Memphis, Tenn., David M. Pack, Atty. Gen., of counsel, for appellee.

Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

PER CURIAM.

1

Appellant protests denial of his petition for writ of habeas corpus by the United States District Court for the Western District of Tennessee. The record discloses that the District Judge did not conduct an evidentiary hearing upon appellant's contentions that his plea of guilty was involuntary, that his counsel was ineffective, and that he had been sentenced by a jury after his plea of guilty on a summary of evidence stated to the jury by the District Attorney.

2

As to the first two of these issues, we affirm for the reasons set forth in the order of the District Court dismissing petition for writ of habeas corpus after the District Judge had reviewed the entire transcript of the proceedings in a state habeas corpus case in which the same issues had been presented and decided adversely to appellant.

3

As to the third issue, this court recently said:

4

"This procedure has recently been held by the Tennessee State Supreme Court not to be violative of T.C.A. § 40-2310. State ex rel. Edmondson v. Henderson, 220 Tenn. 605, 421 S.W.2d 635 (1967). Where, as here, this procedure followed an agreement between accused and his counsel and the District Attorney as to the sentence to be imposed, we agree with the District Judge that no federal constitutional issue is presented thereby." Gray v. Henderson, 403 F.2d 59 (6th Cir. 1968), cert. denied, 394 U.S. 948, 89 S. Ct. 1284, 22 L. Ed. 2d 481 (1969).

5

The judgment of the District Court is affirmed.