Floyd C. Green v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

Floyd C. Green v. Dr. George J. Beto, Director, Texas Department of Corrections

476 F.2d 601, 1973 U.S. App. LEXIS 10662

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 6, 1973

Docket72-2589

StatusPublished

Cited by1 cases

This text of 476 F.2d 601 (Floyd C. Green v. Dr. George J. Beto, Director, Texas Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Floyd C. Green v. Dr. George J. Beto, Director, Texas Department of Corrections, 476 F.2d 601, 1973 U.S. App. LEXIS 10662 (5th Cir. 1973).

Pincite

Opinion

PER CURIAM:

In this, his second round of federal habeas corpus petition, Petitioner challenges his conviction for robbery on the basis that the use of his sworn testimonies in a previous trial against a co-defendant violated his Fifth and Sixth Amendment rights under Miranda. The able trial judge found Petitioner’s contentions to be without merit and declined to issue the writ. We agree.

It is elementary that the stringent requirements of Miranda apply only when the Defendant is in custody. United States v. Montos, 5 Cir., 1970, 421 F.2d 215; Archer v. United States, 5 Cir., 1968, 393 F.2d 124; Evans v. United States, 5 Cir., 1967, 377 F.2d 535; United States v. Akin, 5 Cir., 1970, 435 F.2d 1011. Petitioner’s alleged inculpatory statements were given during the course of a judicial proceeding and after the Petitioner had been informed of his Fifth Amendment right to remain silent by the state trial judge. This is not the invidious subterfuge which the Court faced in Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

*602 Likewise, the mere absence of petitioner’s counsel at the co-Defendant’s trial does not impugn his testimony. United States v. DeLoy, 5 Cir., 1970, 421 F.2d 900; United States v. White, 5 Cir., 1971, 451 F.2d 696. The Petitioner had ample opportunity to refuse to testify or to request the advice of counsel. See United States v. Priest, 5 Cir., 1969, 409 F.2d 491.

The judgment will be

Affirmed.

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PER CURIAM:

In this, his second round of federal habeas corpus petition, Petitioner challenges his conviction for robbery on the basis that the use of his sworn testimonies in a previous trial against a co-defendant violated his Fifth and Sixth Amendment rights under Miranda. The able trial judge found Petitioner’s contentions to be without merit and declined to issue the writ. We agree.

It is elementary that the stringent requirements of Miranda apply only when the Defendant is in custody. United States v. Montos, 5 Cir., 1970, 421 F.2d 215; Archer v. United States, 5 Cir., 1968, 393 F.2d 124; Evans v. United States, 5 Cir., 1967, 377 F.2d 535; United States v. Akin, 5 Cir., 1970, 435 F.2d 1011. Petitioner’s alleged inculpatory statements were given during the course of a judicial proceeding and after the Petitioner had been informed of his Fifth Amendment right to remain silent by the state trial judge. This is not the invidious subterfuge which the Court faced in Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

*602 Likewise, the mere absence of petitioner’s counsel at the co-Defendant’s trial does not impugn his testimony. United States v. DeLoy, 5 Cir., 1970, 421 F.2d 900; United States v. White, 5 Cir., 1971, 451 F.2d 696. The Petitioner had ample opportunity to refuse to testify or to request the advice of counsel. See United States v. Priest, 5 Cir., 1969, 409 F.2d 491.

The judgment will be

Affirmed.

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476 F.2d 601, 1973 U.S. App. LEXIS 10662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-c-green-v-dr-george-j-beto-director-texas-department-of-ca5-1973.

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