650 F2d 152 Flye v. F Parratt

650 F.2d 152

Lavell FLYE, Appellant,
Robert F. PARRATT, Warden, Appellee.

No. 80-2161.

United States Court of Appeals,
Eighth Circuit.

Submitted May 22, 1981.
Decided June 5, 1981.

Paul L. Douglas, Atty. Gen., G. Roderic Anderson, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Roger C. Lott, Lincoln, Neb., for appellant.

Before GIBSON, Senior Circuit Judge, ARNOLD, Circuit Judge, and McMANUS,* District Judge.


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Lavell Flye was convicted in the District Court of Box Butte County, Nebraska, of stabbing Nelson Boerschig with intent to kill, wound, or maim. In this federal habeas corpus proceeding, he claims that he has been deprived of liberty without due process of law because the state trial court did not sua sponte hold a hearing on his competency to understand the proceedings against him, and because his court-appointed counsel, a public defender, was ineffective in not requesting a competency hearing. The District Court1 examined the state-court transcript and held an evidentiary hearing of its own. It then, in a thorough but concise opinion, rejected petitioner's claims and denied the writ.


We affirm, substantially for the reasons stated in the District Court's opinion. See 8th Cir. R. 14. Flye's mental competency had been questioned in an earlier case before the same state court, but he had been found competent to stand trial after a two-month stay at the Lincoln Regional Center. The same trial judge and the same court-appointed lawyer had been involved in the earlier case, which ended about a year before the proceeding out of which the present petition arises. In these circumstances, we agree with the District Court that the state court had no sufficient reason to doubt Flye's ability to understand the proceedings against him and assist in his own defense. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).2




The Hon. Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa, sitting by designation


The Hon. Robert V. Denney, United States District Judge for the District of Nebraska


It is unnecessary to discuss the legal effect of a letter written by Flye to the District Court, disclaiming any interest in further challenging his conviction. Nor do we address the contention that Flye's counsel was ineffective in failing to conduct an adequate investigation. This argument, rejected below for what seem to us entirely sufficient reasons, was not raised on appeal