Kiney Joseph Davis v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

Kiney Joseph Davis v. Dr. George J. Beto, Director, Texas Department of Corrections

368 F.2d 999

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 20, 1966

Docket23825

StatusPublished

Cited by15 cases

This text of 368 F.2d 999 (Kiney Joseph Davis 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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Kiney Joseph Davis v. Dr. George J. Beto, Director, Texas Department of Corrections, 368 F.2d 999 (5th Cir. 1966).

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Opinion

PER CURIAM.

Appellant seeks relief by application for habeas corpus from a state court conviction for the possession of heroin. A search was made disclosing the heroin under a warrant procured upon the affidavit of a police officer based upon “reliable information from a credible person.” The sole issue presented by the appeal is whether Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is to be given retrospective application. We think it follows from what is said in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, denying retroactive effect to the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, that the Aguilar rule should not be applied in any case where the challenged search was made prior to the Mapp decision and perhaps prior to the Aguilar decision. The appellant contends here that the trial judge did not properly determine the admissibility of incriminatory statements orally made by him and in support of this contention, refers us to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205. Since this contention was not made before the district court, it is not before us for review. The order of the district court is

Affirmed.

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PER CURIAM.

Appellant seeks relief by application for habeas corpus from a state court conviction for the possession of heroin. A search was made disclosing the heroin under a warrant procured upon the affidavit of a police officer based upon “reliable information from a credible person.” The sole issue presented by the appeal is whether Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is to be given retrospective application. We think it follows from what is said in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, denying retroactive effect to the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, that the Aguilar rule should not be applied in any case where the challenged search was made prior to the Mapp decision and perhaps prior to the Aguilar decision. The appellant contends here that the trial judge did not properly determine the admissibility of incriminatory statements orally made by him and in support of this contention, refers us to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205. Since this contention was not made before the district court, it is not before us for review. The order of the district court is

Affirmed.

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368 F.2d 999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiney-joseph-davis-v-dr-george-j-beto-director-texas-department-of-ca5-1966.

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