474 F2d 1273 Robinson v. State of Tennessee

474 F.2d 1273

Leonard ROBINSON and Isaac Bailey, Petitioners-Appellants,
v.
STATE OF TENNESSEE and Weldon Cox, Warden, Tennessee State
Penitentiary, Respondents-Appellees.

No. 72-1547.

United States Court of Appeals,
Sixth Circuit.

Argued Feb. 5, 1973.
Decided March 7, 1973.

Lowry F. Kline (Court appointed), Chattanooga, Tenn., for petitioners-appellants.

R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for respondents-appellees.

Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.

PER CURIAM.

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1

Appellants appeal from denial of their petitions for writs of habeas corpus by the United States District Court for the Eastern District of Tennessee, Southern Division. They present three appellate claims: 1) denial of effective assistance of counsel at their state court trial; 2) denial of due process in being refused the opportunity to call a particular witness, and 3) denial of due process by prejudicial remarks of the prosecuting attorney in his jury argument.

2

On review of the appellate briefs and oral arguments the two orders filed by the District Judge in the District Court proceedings and the transcripts of the two state court trials, we affirm the judgment of the District Court denying habeas corpus relief, 340 F.Supp. 82.

3

The remarks of the prosecutor complained of clearly do not rise to federal constitutional dimensions.

4

The refusal of the state trial judge to allow a witness to testify when such witness had been in the courtroom all during the trial, in violation of a sequestration order, was within the discretion vested in the trial judge. See United States v. Brooks, 303 F.2d 851 (6th Cir. 1962). It certainly did not represent any deprivation of appellants' constitutional rights. Review of the first state court trial record shows conclusively that the witness was not an eyewitness to the killing and that his testimony would have been of little if any help to appellants.

5

Additionally, the record discloses that separate counsel had been appointed for each appellant, but that appellant Bailey voluntarily discharged his appointed counsel and retained the same counsel who had been appointed for appellant Robinson. In this set of circumstances, we find no deprivation of the Sixth Amendment right to counsel.

6

The judgment of the District Court is affirmed.