460 F2d 1284 Lotz v. J Koloski

460 F.2d 1284

Edwin E. LOTZ, Petitioner-Appellant,
v.
Marion J. KOLOSKI, Warden, Ohio Penitentiary, Respondent-Appellee.

No. 71-1970.

United States Court of Appeals,
Sixth Circuit.

May 24, 1972.

Ivan L. Tamarkin, Cincinnati, Ohio, for petitioner-appellant.

William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief for respondent-appellee.

Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and Mc-ALLISTER, Senior Circuit Judge.

PER CURIAM.

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1

This is an appeal from a denial of appellant's petition for writ of habeas corpus following his conviction in 1953 on a charge of burglary in the nighttime. The issues argued to us appear to have been presented before, either in a state court habeas corpus hearing or a habeas corpus hearing in the United States District Court for the Southern District of Ohio, which this court reviewed in 1961. Lotz v. Sacks, 292 F.2d 657 (6th Cir. 1961). The District Judge in the instant case conducted no evidentiary hearing but decided the issues on the prior records.

2

Two of the three principal issues argued on appeal to us were decided adversely to defendant in this court's opinion in 1961 cited above. These two issues pertain to appellant's claim that he had been served with another indictment in front of the jury in this case, and that in his original state court trial he was represented by incompetent counsel. The third material issue represents appellant's argument that his due process rights were violated by pretrial publicity. The District Judge found, as do we, that no facts approaching the interference with judicial processes comparable to those in the Sheppard case are presented in this appeal. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

3

The judgment of the District Court is affirmed.