Emmett v. Balkcom

Citation358 F.2d 302
Decision Date25 March 1966
Docket NumberNo. 22815.,22815.
PartiesErnest Lee EMMETT, Appellant, v. R. P. BALKCOM, Jr., Warden, Georgia State Prison, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Ernest Lee Emmett, pro se.

Arthur K. Bolton, Atty. Gen., Peyton S. Hawes, Jr., Asst. Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before PHILLIPS,* RIVES and COLEMAN, Circuit Judges.

PER CURIAM:

Appellant is a prisoner of the State of Georgia, serving multiple sentences pursuant to guilty pleas to numerous charges of robbery. He seeks federal habeas corpus on the ground that he was not represented by counsel in the State Court, that an involuntary confession was used against him, and that he had no preliminary arraignment or hearing. The District Court, from which this appeal was taken, granted the petitioner a full evidentiary hearing, in which he was represented by counsel, was permitted to appear personally, and gave testimony. Upon consideration of all the proof, the trial judge found that appellant was, in fact, represented by counsel in the State Court. This finding is supported by evidence and is thus not subject to reversal here.

Appellant cannot now complain of any lack of preliminary hearing or as to any confession he may have given, as these elements disappeared from the case when he entered his plea of guilty.

No certificate of probable cause has been granted and treating the appeal as an application for such certificate, the same is

Denied.

* Of the Tenth Circuit, sitting by designation.

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4 cases
  • Turley v. Swenson
    • United States
    • U.S. District Court — Western District of Missouri
    • July 24, 1970
    ...plea voluntarily entered constitutes a waiver of all non-jurisdictional defects at any prior stage in the proceedings. Emmett v. Balkcom, (5th Cir., 1966) 358 F.2d 302; Engling v. Crouse, (10th Cir., 1966) 357 F.2d 267; Gallegos v. Cox, (9th Cir., 1966) 358 F.2d 703; U. S. ex rel. Pizarro v......
  • Cradle v. Cox
    • United States
    • U.S. District Court — Eastern District of Virginia
    • June 1, 1971
    ...guilty plea is a waiver of all non-jurisdictional defects, including a claim defendant was denied a preliminary hearing. Emmett v. Balkcom, 358 F.2d 302 (5th Cir. 1966), holding on a plea of guilty any lack of preliminary hearing disappears; United States v. Coffey, 415 F.2d 119 (10 Cir. 19......
  • Ashby v. Cox
    • United States
    • U.S. District Court — Western District of Virginia
    • June 2, 1972
    ...that he was denied a preliminary hearing on count two of the indictment is foreclosed by his voluntary guilty plea. Emmett v. Balkcom, 358 F.2d 302 (5th Cir. 1966); United States v. Karger, 439 F.2d 1108, 1109-1110 (1st Cir. 1971), cert. den. 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696 (197......
  • Stover v. Coiner, Civ. A. No. 68-81-E.
    • United States
    • U.S. District Court — Northern District of West Virginia
    • September 30, 1968
    ...a habeas corpus hearing of any lack of preliminary hearing, as these possible errors are waived by his plea of guilty. Emmett v. Balkcom, 358 F.2d 302 (5th Cir. 1966). Petitioner's last contention is that he was represented by ineffective and incompetent counsel. He has not offered any evid......

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