Rush O. Nichols v. W. J. Estelle, Jr., Director, Texas Department of Corrections, Respondent

556 F.2d 1330

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 6, 1977
• Docket: 76-3108
• Status: Published

Opinion

GEE, Circuit Judge:

Petitioner was convicted in 1973 in Texas state court of robbery by assault 1 and was sentenced to life imprisonment under the Texas habitual offender statute. 2 He here alleges that the state improperly relied on a 1965 Oklahoma conviction to enhance his sentence for three reasons: (1) he was denied counsel on appeal from that conviction; (2) Texas law prohibits the use of a capital felony such as the Oklahoma conviction to enhance a noncapital felony such as the Texas conviction; and (3) the state failed to prove that petitioner was afforded an examining trial prior to the 1965 conviction. Because federal courts do not review a state’s failure to adhere to its own sentencing procedures, 3 and because the Constitution does not require a state preliminary hearing, 4 only the first contention presents a possible basis for habeas corpus relief.

But petitioner’s counsel failed to object to the admission of the Oklahoma conviction on the ground that counsel had not been provided on appeal. 5 This failure worked a waiver of the constitutional error complained of here. Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Loud v. Estelle, 556 F.2d 1326 (5th Cir. 1977). See also St. John v. Estelle, 544 F.2d 894 (5th Cir. 1977).

The district court’s order denying relief is AFFIRMED.

1 . The conviction was affirmed on appeal. Nichols v. State, 511 S.W.2d 269 (Tex.Cr.App. 1974). State habeas corpus relief was denied without written opinion.

2 . Tex.Penal Code Ann. § 12.42 (1974).

3 . Willeford v. Estelle, 538 F.2d 1194 (5th Cir. 1976).

4 . Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974).

5 . A general objection on other grounds was made and overruled.