428 F.2d 356 (5th Cir. 1970), 28619, Martin v. Wainwright

Docket Nº:28619
Citation:428 F.2d 356
Party Name:Peter MARTIN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
Case Date:June 18, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 356

428 F.2d 356 (5th Cir. 1970)

Peter MARTIN, Petitioner-Appellant,

v.

Louie L. WAINWRIGHT, Respondent-Appellee.

No. 28619

United States Court of Appeals, Fifth Circuit.

June 18, 1970

Rehearing Denied July 8, 1970.

Peter Martin, pro se.

Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM.

Peter Martin appeals from the district court's denial of his petition for a writ of habeas corpus, complaining of the denial of due process of law in his state trial for robbery. He contends that error of constitutional dimensions occurred when the prosecutor improperly used an FBI report while attempting to impeach an alibi witness, and when the prosecutor commented on appellant's five prior felony convictions during closing argument. We find no authority to support these contentions; accordingly, the decision of the district court is affirmed. 1

The first contention relates to the prosecutor's conduct in attempting to impeach appellant's brother, an alibi witness. He argues that the prosecutor improperly displayed an FBI 'rap' sheet in front of the jury. It appears from the record that the prosecutor did read from the report when examining the witness. However, as the state points out, the source of the report was not revealed in the presence of the jury.

Page 357

In addition, Martin's brother admitted to one prior felony conviction and to juvenile convictions-- all or some of which were apparently listed in the FBI report. The authorities presented convince us that the prosecutor's conduct could possibly be considered as improper under state law 2 in appropriate circumstances. However, we do not sit as a 'super' state supreme court. 3 We have been presented with no authority for the proposition that the prosecutor's conduct amounts to a denial of due process. It has been stated, repeatedly and correctly:

The due process of law clause in the Fourteenth Amendment does not take up the statutes of the several states and make them the test of what it requires; nor does it enable this court to revise the decisions of the state courts on questions of state law. What it does require is that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as...

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