455 F. 2d 506 - Purkhiser v. L Wainwright

In 1966 a jury in a Florida state court convicted James D. Purkhiser of first-degree murder and sentenced him to death. The Florida Supreme Court, on direct appeal, held that the evidence was insufficient to warrant submission of the issue of premeditation to the jury and, therefore, was insufficient to sustain a conviction for first-degree murder. The Florida Supreme Court held, however, that the evidence was sufficient to sustain a charge of murder in the second-degree and remanded the case for resentencing. Purkhiser v. State, Fla.1968, 210 So.2d 448. On remand, the state court imposed a sentence of 42 years and two months.

In his petition for habeas corpus filed in the district court, Purkhiser alleges numerous grounds for relief.1 The district court held that petition had exhausted his available state remedies2 and denied his petition, assigning reasons. The district court's opinion is reported at 338 F.Supp. 369.

On this appeal from the denial of habeas relief, the petitioner has failed to demonstrate any error in the trial court's determinations as to the issues raised in the habeas petition. The petitioner complains of the trial court's failure to grant him a hearing on "newly discovered evidence". The "new evidence" is an unsigned, undated, and unnotarized affidavit by a fellow-prisoner stating that one of the Government witnesses lied at the trial. This "new evidence" was insufficient to require the district judge to hold an evidentiary hearing.

Affirmed.