Robert Mitchell Pearson, Appellant, v. Dr. George J. Beto, Director, Texas Department of Corrections, Appellee, 400 F.2d 886 (5th Cir. 1968)

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U.S. Court of Appeals for the Fifth Circuit - 400 F.2d 886 (5th Cir. 1968) September 23, 1968

Robert M. Pearson, pro se.

Robert E. Owen, Asst. Atty. Gen., Austin, Tex., for appellee.

Before RIVES, WISDOM and SIMPSON, Circuit Judges.


The record in this appeal, taken in forma pauperis, was lodged with this Court on August 30, 1967. The appeal is from an adverse judgment with respect to a petition for habeas corpus by a Texas state prisoner serving a life sentence for murder with malice in the custody of the respondent-appellee. The district court held a full adversary hearing, with the petitioner represented by court-appointed counsel; and entered complete findings of fact and conclusions of law.

A prior panel of this Court on March 27, 1968, granted the request of appellant's court-appointed counsel for leave to withdraw, and denied appellant's pro se request for the appointment of additional counsel. Since that date appellant has failed to file his brief herein and the time therefor has long since expired, despite appropriate notice served upon appellant by the Clerk of this Court. (See Rule 24, former Rules of this Court, and Rule 31, Federal Rules of Appellate Procedure effective July 1, 1968).

The appellant's failure to file his brief has been referred to the Court by the Clerk under the provisions of Rule 9(c) 2, Local Rules of this Court effective July 1, 1968. Close inspection of the record convinces us that this appeal is without merit. Appellant would be required to demonstrate that the findings of fact of the trial court were clearly erroneous (see Rule 52(a), F.R.Civ. P.), and our inspection of the record leads us to the conclusion that this is not possible. Accordingly, the judgment of the court below is summarily