John Arthur Duncan v. Louie L. Wainwright, Director, Division of Corrections, State of Florida

358 F.2d 725, 1966 U.S. App. LEXIS 6720

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 28, 1966
• Docket: 22970_1
• Status: Published

Opinion

PER CURIAM:

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 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

Affirmed.