358 F2d 725 Duncan v. L Wainwright

358 F.2d 725

John Arthur DUNCAN, Appellant,
Louie L. WAINWRIGHT, Director, Division of Corrections,
State of Florida, Appellee.

No. 22970.

United States Court of Appeals Fifth Circuit.

March 28, 1966.

John Arthur Duncan, pro se.

Earl Faircloth, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., Tallahassee, Fla., for appellee.

Before PHILLIPS,1 RIVES, and COLEMAN, Circuit Judges.


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This Appellant is a prisoner of the State of Florida, pursuant to conviction of the crime of armed robbery. In the State Court, Appellant was represented by counsel of his own employment. He waived trial by jury and was convicted after trial before the Court. Appellant thereafter filed a petition in the Florida Court for the vacation of sentence under Rule One, Florida Rules of Criminal Procedure, F.S.A. ch. 924 Appendix. Relief was denied, and the Appellate Court affirmed. Duncan v. State, 161 So.2d 718 (Fla.App., 1964).


We quote from the opinion of the Florida District Court of Appeals:


'The trial judge found that any errors complained of in the petition (admission of evidence allegedly obtained by illegal search and seizure) were such errors as should have been called to the attention of the trial court and asserted by appeal.'


On the same ground raised in the Florida proceedings, Appellant then filed a petition for a writ of habeas corpus in the United States District Court.


The District Court examined the State Court record herein described, found the application to be without merit, and denied relief. Under the authority of Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, we find no error, and the Judgment is




Of the Tenth Circuit, sitting by designation