Moore v. Eyman, 71-2847.

Decision Date13 July 1972
Docket NumberNo. 71-2847.,71-2847.
Citation464 F.2d 559
PartiesFrank MOORE, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Edward C. Rapp (argued), of Tupper, Rapp, Salcito & Schlosser, Phoenix, Ariz., for petitioner-appellant.

William P. Dixon, Deputy Atty. Gen. (argued), Roderic A. Dietz, Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.

Before MERRILL, ELY and TRASK, Circuit Judges.

PER CURIAM:

Appellant, an Arizona state prisoner, seeks release by writ of habeas corpus. He contends that his conviction was based on identification by an eyewitness who had picked him out of a line-up and had so testified; that appellant had requested and been denied counsel at the time of the line-up. He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The line-up, however, was prior to indictment (or other initiation of adversary judicial proceeding) and right to counsel had not attached. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

Further, findings of the District Court after a full evidentiary hearing render Wade and Gilbert inapplicable. The court found that the in-court identification was completely independent of the line-up identification. United States v. Wade, 388 U.S. 218, 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also, United States v. Breaux, 450 F.2d 948 (9th Cir. 1971). This finding was not clearly erroneous. Indeed, it was overwhelmingly supported by the record. Any testimonial reference to the line-up at the time of trial was harmless beyond a reasonable doubt. Gilbert v. California, 388 U.S. 263, 272-274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Affirmed.

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5 cases
  • Com. v. Richman
    • United States
    • Pennsylvania Supreme Court
    • 22 Mayo 1974
    ...1972); United States v. Savage, 470 F.2d 948 (3d Cir. 1972); United States v. Coades, 468 F.2d 1061 (3d Cir. 1972); and, Moore v. Eyman, 464 F.2d 559 (9th Cir. 1972). 4 Houston v. State, 49 Ala.App. 403, 272 So.2d 610 (1973); State v. Money, 110 Ariz. 18, 514 P.2d 1014 (1973); People v. Cho......
  • Young v. State of Oklahoma
    • United States
    • U.S. District Court — Western District of Oklahoma
    • 20 Septiembre 1976
    ...right to counsel at the lineup his request could not of itself create a right to counsel which did not otherwise exist. In Moore v. Eyman, 464 F.2d 559 (C.A.9 1972) the court held that the habeas petitioner was not entitled to relief on the ground that his conviction was based on identifica......
  • State v. Knapp
    • United States
    • Washington Court of Appeals
    • 23 Abril 1973
    ...to counsel had not attached under Kirby and the motion to suppress for lack of counsel was therefore properly denied. Moore v. Eyman, 464 F.2d 559 (9th Cir. 1972); United States v. Bothwell, 465 F.2d 217 (9th Cir. Next, defendant contends that the pre-information lineup was impermissibly su......
  • United States v. Smith
    • United States
    • U.S. District Court — District of Alaska
    • 22 Agosto 2019
    ...when the government initiates adversarial proceedings); Maine v. Moulton, 474 U.S. 159, 170 (1985) (same). 46. Moore v. Eyman, 464 F.2d 559, 559-60 (9th Cir. 1972) (citing Kirby, 406 U.S. 682). 47. Docket 465 at 10-11, 12 (under seal) (citing Estelle v. Smith, 451 U.S. 454 (1981)). 48. Dock......
  • Request a trial to view additional results

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