Frank Moore v. Frank A. Eyman, Warden

Ninth Circuit

Frank Moore v. Frank A. Eyman, Warden

464 F.2d 559, 1972 U.S. App. LEXIS 8438

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 13, 1972

Docket71-2847

StatusPublished

Cited by4 cases

This text of 464 F.2d 559 (Frank Moore v. Frank A. Eyman, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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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Frank Moore v. Frank A. Eyman, Warden, 464 F.2d 559, 1972 U.S. App. LEXIS 8438 (9th Cir. 1972).

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Opinion

PER CURIAM:

Appellant, an Arizona state prisoner, seeks release by writ of habeas corpus. He contends that his conviction was based on identification by an eyewitness who had picked him out of a line-up and had so testified; that appellant had requested and been denied counsel at the time of the line-up. He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The line-up, however, was prior to indictment (or other initiation of adversary judicial proceeding) and right to counsel had not attached. Kirby v. Illi *560 nois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

Further, findings of the District Court after a full evidentiary hearing render Wade and Gilbert inapplicable. The court found that the in-court identification was completely independent of the line-up identification. United States v. Wade, 388 U.S. 218, 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also, United States v. Breaux, 450 F.2d 948 (9th Cir. 1971). This finding was not clearly erroneous. Indeed, it was overwhelmingly supported by the record. Any testimonial reference to the line-up at the time of trial was harmless beyond a reasonable doubt. Gilbert v. California, 388 U.S. 263, 272-274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Affirmed.

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PER CURIAM:

Appellant, an Arizona state prisoner, seeks release by writ of habeas corpus. He contends that his conviction was based on identification by an eyewitness who had picked him out of a line-up and had so testified; that appellant had requested and been denied counsel at the time of the line-up. He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The line-up, however, was prior to indictment (or other initiation of adversary judicial proceeding) and right to counsel had not attached. Kirby v. Illi *560 nois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

Further, findings of the District Court after a full evidentiary hearing render Wade and Gilbert inapplicable. The court found that the in-court identification was completely independent of the line-up identification. United States v. Wade, 388 U.S. 218, 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also, United States v. Breaux, 450 F.2d 948 (9th Cir. 1971). This finding was not clearly erroneous. Indeed, it was overwhelmingly supported by the record. Any testimonial reference to the line-up at the time of trial was harmless beyond a reasonable doubt. Gilbert v. California, 388 U.S. 263, 272-274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Affirmed.

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464 F.2d 559, 1972 U.S. App. LEXIS 8438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-moore-v-frank-a-eyman-warden-ca9-1972.

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