387 F.2d 134 (6th Cir. 1967), 17582, Coleman v. Maxwell

Docket Nº:17582.
Citation:387 F.2d 134
Party Name:James Nelson COLEMAN, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee.
Case Date:December 21, 1967
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 134

387 F.2d 134 (6th Cir. 1967)

James Nelson COLEMAN, Petitioner-Appellant,

v.

E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee.

No. 17582.

United States Court of Appeals, Sixth Circuit.

December 21, 1967

William P. Streng (Court Appointed), Cincinnati, Ohio (John J. Dilenschneider, Columbus, Ohio, on the brief), for appellant.

Leo J. Conway, Columbus, Ohio (William B. Saxbe, Atty. Gen., Columbus, Ohio, on the brief), for appellee.

Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.

PER CURIAM.

Petitioner-appellant (hereinafter 'appellant') was convicted in the state court under an indictment charging three counts of burglary and three of larceny of an inhabited dwelling arising out of the burglary of three separate residences. On appeal the judgment of conviction was affirmed by the Ohio Court of Appeals and the Supreme Court of Ohio and thereafter a petition for writ of habeas corpus was filed in the United States District Court. A dismissal by that court on the ground of failure to exhaust state remedies was reversed by this court and the cause was remanded for an evidentiary hearing, 6 Cir., 351 F.2d 285. After such hearing the District Court denied the petition for a writ of habeas corpus, but issued a certificate of probable cause and entered an order allowing an appeal in forma pauperis. Simultaneously with this appeal to this court from that order appellant filed a petition for writ of habeas corpus before a judge of this court which subsequently issued an order denying that petition but ordering that it and the supporting papers be filed as a part of the record in the present appeal. The matter is thus before this court for the third time.

Counts Nos. 3 and 4 of the indictment were related to the burglary of the residence of one Albert White. In connection with that burglary and to sustain its burden of proof against appellant under these two counts the State of Ohio offered items obtained by police officers who made a search of certain premises referred to throughout these proceedings as a 'storefront.' These items comprised evidence which was the subject of a motion to suppress which was heard by the trial court outside the presence of the jury. Following denial of that motion the articles were received in evidence, and it is their consideration by the jury which appellant here argues constituted a violation of his constitutional rights.

---------- 16 Ohio Misc. 245_----------

In considering that contention, the District Judge made findings of fact establishing that the storefront had been used by appellant in connection with his business as a registered investment counselor and his occupancy was based upon a lease drawn by his brother, an attorney, who represented him both in the preparation and...

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