Stewart v. Cain

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-31121 Summary Calendar

CLYDE STEWART,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 97-CV-1231-H - - - - - - - - - -

July 1, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Clyde Stewart, Louisiana prisoner # 92865, challenges the

district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus

petition. He contends that he was denied his right to counsel at

a physical lineup conducted after he was arrested and appointed

counsel at an initial court appearance but prior to the issuance

of the indictment.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-31121 -2-

Stewart’s claim that he was entitled to counsel under

Louisiana law, pursuant to State v. Hattaway, 621 So. 2d 796 (La.

1993) and La. Code Crim. P. Ann. art. 230.1 (West 1999), is not

cognizable in a § 2254 petition. See Bridge v. Lynaugh, 838 F.2d

770, 772 (5th Cir. 1988)(errors of state law and procedure are

not cognizable in federal habeas proceedings unless they result

in a violation of a federal constitutional right). Stewart does

not have a federal constitutional claim because his initial

appearance was not a preliminary hearing signaling the onset of

adversarial judicial proceedings and triggering his Sixth

Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682,

688-89 (1972); Frisco v. Blackburn, 782 F.2d 1353, 1355 (5th Cir.

1986); Daigre v. Maggio, 705 F.2d 786 (5th Cir. 1983); La. Code

Crim. P. arts. 230.1, 291 et. seq. The district court’s judgment

denying habeas relief is therefore AFFIRMED.