451 F2d 354 Bryant v. Morgan

451 F.2d 354

Wayland BRYANT and Ronald Williams, individually and on
behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
Earl MORGAN, individually and as District Attorney of the
Tenth Judicial Circuit of Alabama, et al.,
Defendants-Appellees.

No. 71-2321 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 11, 1971.
Rehearing and Rehearing En Banc Denied Dec. 22, 1971.

Jack Drake, University, Ala., for plaintiffs-appellants.

Earl Morgan, Dist. Atty., Jefferson County, Birmingham, Ala., William J. Baxley, Atty. Gen. of Ala., J. Victor Price, Jr., Montgomery, Ala., George C. Batcheler, Deputy Dist. Atty., Tenth Judicial Circuit, Birmingham, Ala., for defendants-appellees.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

PER CURIAM:

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1

These appellants have been indicted and arraigned for assaulting a peace officer with a deadly instrument in violation of the laws of Alabama. Arraignment occurred on November 24, 1970.

2

On December 29, 1970, plaintiffs filed a complaint in the United States District Court attacking (1) the system prevailing in Jefferson County, Alabama, for the exercise of peremptory challenges to prospective trial jurors and (2) the requirement that the identities of prospective jurors be kept secret until they appeared in the courtroom prior to being empanelled.

3

These procedures were said to deny plaintiffs due process of law, the equal protection of the law, and the effective assistance of counsel.

4

The District Judge granted a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted.

5

The record shows not only that the plaintiffs had been duly indicted and arraigned in the state court but had there raised the attacks sought to be asserted in the federal complaint.

6

The dismissal, therefore, was correct. See Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669.

7

Affirmed.

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8

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

*

Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I