446 F2d 1004 Lee v. J Beto 71-1287

446 F.2d 1004

Frank LEE, Jr., Petitioner-Appellant,
Dr. George J. BETO, Director, Texas Department of
Corrections, Respondent-Appellee.
No. 71-1287 Summary Calendar.*
*(1) Rule 18, 5 Cir., see Isbell Enterprises, Inc.
Citizens Casualty Company of New York, et al., 5 Cir. 1970,
431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

June 14, 1971.

Frank Lee, Jr., pro se.

Crawford C. Martin, Atty. Gen. of Texas, Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Robert Darden, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.


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Frank Lee, Jr., a Texas state prisoner, appeals from an order of the district court denying his petition for the writ of habeas corpus. We affirm. This is Lee's second appeal in this case. On his first appeal we affirmed the judgment of the district court in part but remanded for further findings 'related to 'the fundamental fairness of Petitioner's original trial in Limestone County; the evidence as to intimidation of Petitioner's witnesses and as to racial prejudice in general in Limestone County at the time of the trial." See Lee v. Beto, 5 Cir. 1970, 429 F.2d 524, 525.


On remand the district court carefully re-read the transcripts of Lee's trial and state habeas corpus hearing and concluded that 'the petitioner was not denied due process of law at his trial due to racial prejudice or any lack of fundamental fairness.' Specifically, the district court noted that following a full evidentiary hearing the state habeas court found that


(1) there was no evidence that any of the petitioner's witnesses were kept from testifying;


(2) there was no evidence that any members of the Negro race was systematically excluded either from the Grand Jury and/or the Petit Jury;


(3) there was no evidence that any particular rumor or feeling in the locality in any way affected the trial.


The district court concluded that these factual findings were adequately supported by the state court record and denied Lee's petition.


Our examination of the whole record in the case has revealed no clear error in the district court's findings of fact and no error in its conclusions of law. The judgment of the district court is affirmed. See Rule 52(a), F.R.Civ.P.; Milton v. Wainwright, 5 Cir. 1970, 428 F.2d 463, 464; Perkins v. Henderson, 5 Cir. 1969, 418 F.2d 441, 442.

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