469 F2d 1154 Scarpati v. L Wainwright

469 F.2d 1154

Joseph Louis SCARPATI, Petitioner-Appellant,
v.
Louie L. WAINWRIGHT, Director, Florida Division of
Corrections, Respondent-Appellee.

No. 72-2798 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 28, 1972.

Joseph Louis Scarpati, pro se.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., J. Robert Olian, Miami, Fla., for respondent-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:

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1

Joseph Louis Scarpati sought habeas corpus relief from a conviction and 25 year sentence for robbery, asserting that evidence admitted at his robbery trial was obtained by an unconstitutional search of his home following his arrest. The district court denied the writ. We affirm.

2

Petitioner contends that the new search restrictions announced on June 23, 1969 in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, should be applied to this case since on that date his conviction was still on direct appeal in the state courts of Florida.1 The Supreme Court in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), decided that this new rule should not be applied retroactively to searches occurring prior to June 23, 1969. As this latter decision makes clear, it is the date of the search, not the date of the completion of direct appeal, which governs the applicability of Chimel. See also Lyon v. United States, 416 F.2d 91 (5th Cir. 1969), cert. denied 396 U.S. 1023, 90 S.Ct. 597, 24 L.Ed.2d 516 (1970). Since Scarpati's search occurred prior to Chimel, it does not affect his rights.

3

The district court held that Scarpati's search was constitutional under the principles of United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). We find no error in this determination.

The denial of the writ of habeas corpus is

4

Affirmed.

*

Rule 18, 5th Cir.; see Isbell Enterprises,

Inc. v. Citizens Casualty Company of New York et al., 431 F.2d 409, Part I (5th Cir. 1970).

1

His conviction was affirmed by the Court of Appeal, Third District of Florida, on June 17, 1969, Scarpati v. State, 224 So.2d 335 (Fla.App.1969), rehearing denied July 19, 1969. The Florida Supreme Court denied certiorari November 10, 1969