Kimbro v. Henderson

Petitioner-appellant is serving a sentence for first degree murder committed in the perpetration of a robbery. The jury imposed
a death sentence which was later commuted to a term of 99 years by the Governor of Tennessee. This is the fourth occasion
petitioner has been before this Court in various habeas corpus proceedings. In Kimbro v. Bomar, 333 F.2d 755 (6th Cir. 1964),
the judgment of the District Court denying a writ was affirmed. In Kimbro v. Heer, 364 F.2d 116 (6th Cir. 1966), his second
application for a writ was denied by the District Court without an evidentiary hearing and we affirmed. This judgment was
subsequently set aside and the Supreme Court, citing Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963),
remanded the case for an evidentiary hearing. Kimbro v. Heer, 386 U.S. 128, 87 S. Ct. 902, 17 L. Ed. 2d 778 (1967). A hearing
was held and the writ was again denied. On appeal, it appeared that the death of the court reporter prevented petitioner from
obtaining a transcript of the hearing, and since a transcript was deemed necessary for proper appellate consideration, the
case was remanded for another evidentiary hearing. Kimbro v. Henderson, 407 F.2d 1331 (6th Cir. 1969). This appeal is from
the judgment of the District Court again denying petitioner's application for a writ of habeas corpus. At this second evidentiary hearing, evidence was introduced directed to the same issues as were raised in the initial evidentiary
hearing and which were also essentially the same issues previously considered and found to be without merit by this Court
in Kimbro v. Heer, 364 F.2d 116 (6th Cir. 1966). Thus, district courts have on three occasions rejected petitioner's contention
on these issues. First, they were rejected without an evidentiary hearing and we affirmed the judgment on appeal. On the two
subsequent occasions, the contentions were considered by the District Court following evidentiary hearings and no evidence
was introduced that required any variance from the original denial of the writ. From a review of the present record we hold
that the District Judge for the reasons stated in his opinion correctly denied the petition. Moreover, since the District
Court's decision, the issue of the validity of the search of petitioner's automobile was decided adversely to petitioner in
Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, 1970.