Fitts v. Willingham, 8592.
| Citation | 359 F.2d 790 |
| Decision Date | 19 April 1966 |
| Docket Number | No. 8592.,8592. |
| Parties | John Thomas FITTS, Appellant, v. J. T. WILLINGHAM, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Robert M. Brown, Topeka, Kan., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.
Before HILL and SETH, Circuit Judges, and BOHANON, District Judge.
Appellant was tried and convicted in the District of Kansas under 18 U.S.C.A. § 2312, commonly known as the Dyer Act. An appeal followed and this court affirmed the conviction.1 Thereafter, he filed a petition for a writ of habeas corpus in the same court, which the court considered as a motion under 28 U.S.C.A. § 2255. On the basis of the pleadings, files and records of the case the same was dismissed.
Fitts was arrested by city policemen in Wichita, Kansas, after he was observed by them changing license tags on an automobile. As an incident to the arrest the officers seized the license tag and searched the person of the accused and took from him a sack of articles. Fitts was turned over to the F.B.I. and the prosecution followed.
The record discloses the following additional undisputed facts. Fitts was taken before a United States Commissioner two days after his arrest, where he was formally charged and a warrant issued. A bond was fixed and he was remanded to jail in default of bond. Four days later he was taken before a United States District Judge, where he was represented by retained counsel. At this time he waived indictment by a grand jury, an information was filed against him and he entered his plea of not guilty to charges contained in the information. Before trial his retained counsel withdrew and the court appointed counsel to represent him. The jury trial followed which resulted in a verdict of guilty. During the trial the government offered into evidence the seized license plate and the sack and articles taken from Fitts' person. Objection was made but the exhibits were admitted over such objection. Appointed counsel also objected to the admission of any conversations had between the investigating officers and Fitts because of the two day delay in taking him before a commissioner. This objection was likewise overruled by the trial judge.
Appellant's points raised here may be summarized: (1) That the search of the car and his person were without legal authority and the seized articles were not admissible into evidence at the trial; (2) that he was denied counsel at a preliminary hearing; (3) that he was denied a preliminary hearing; and (4) that the denial of counsel and of a preliminary hearing resulted in depriving him of knowledge that he had a legal basis for a motion to suppress evidence.
We believe the trial court properly dismissed the proceedings on the basis of the pleadings, files and records before it. The validity of the search and seizure had been raised at the trial by the court appointed counse...
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Fitts v. United States, 9176.
...motion to vacate sentence and/or petition for writ of habeas corpus which was denied and such denial affirmed by this court. (Fitts v. Willingham, 359 F.2d 790). In the instant proceeding appellant contends that since he was sentenced on March 16, 1964, made election not to commence serving......
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Maxwell v. Blount, s. O-478
...* * * If he waives indictment and pleads guilty, he cannot complain of the lack of a preliminary examination. (Citing Fitts v. Willingham, C.A.10th, 1966, 359 F.2d 790.) And finally, if he is first held on a complaint, but thereafter an indictment is returned, a preliminary examination need......