Opinion
No. 18290.
July 8, 1968.
Russell H. Hippe, Jr. (Court Appointed), Trabue, Minick, Sturdivant Harbison, Nashville, Tenn., for appellant.
Robert H. Dedman, Special Counsel, Nashville, Tenn., David W. McMackin, Asst. Atty. Gen., Nashville, Tenn., on brief; George F. McCanless, Atty. Gen. and Reporter, State of Tennessee, of counsel, for appellee.
Before PHILLIPS, CELEBREZZE and COMBS, Circuit Judges.
This is a habeas corpus case growing out of the conviction of petitioner in the State Court of the crime of armed robbery. Within a short time after the arrest petitioner made an oral confession, followed by a written confession signed in the presence of witnesses.
Later the confession was repudiated. At the trial in the State Court in June 1964 the defense was made that the confession was involuntary. The State Court, after hearing testimony on this issue outside the presence of the jury, ruled that the confession was voluntary. The Supreme Court of Tennessee affirmed in an unpublished opinion dated July 10, 1965.
District Judge William E. Miller conducted an evidentiary hearing and concluded that petitioner had not established by a preponderance of the evidence that the confession was involuntary.
On appeal petitioner contends that the burden of proof in a habeas corpus case is upon the respondent to establish that his confession was voluntary.
As in all other habeas corpus proceedings, where the voluntariness of a confession is challenged by collateral attack, the petitioner must prove by the preponderance of the evidence that the confession was involuntary. Gray v. Johnson, 354 F.2d 986 (6th Cir.), cert. denied 383 U.S. 961, 86 S.Ct. 1232, 16 L.Ed.2d 304. The record supports the finding of the District Court that the petitioner did not carry the burden of proof.
The judgment of the District Court is affirmed.
The appreciation of the Court is expressed to Mr. Russell H. Hippe, Jr., of the Nashville bar for his services as court-appointed counsel for petitioner.