Franklin v. White, No. 86-1151

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LAY, Chief Judge, HENLEY, Senior Circuit Judge, and BOWMAN; PER CURIAM
Citation803 F.2d 416
PartiesClifton FRANKLIN, Appellant, v. Carl WHITE, Appellee.
Docket NumberNo. 86-1151
Decision Date04 December 1986

Page 416

803 F.2d 416
Clifton FRANKLIN, Appellant,
v.
Carl WHITE, Appellee.
No. 86-1151.
United States Court of Appeals,
Eighth Circuit.
Submitted Sept. 9, 1986.
Decided Oct. 15, 1986.
Rehearing and Rehearing En Banc Denied Dec. 4, 1986.

Page 417

James F. Shrewsbury, St. Louis, Mo., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

PER CURIAM.

Clifton Franklin appeals from the denial of his 28 U.S.C. Sec. 2254 habeas corpus petition by the United States District Court for the Eastern District of Missouri. 1 Franklin was indicted on charges of capital murder and first degree robbery in the State of Missouri in connection with a robbery in St. Louis. He was convicted by a jury in the Circuit Court of the City of St. Louis of first degree felony murder and first degree robbery. Franklin was given concurrent sentences of life and twenty-five years imprisonment. All parties agree that he has exhausted his state remedies.

In his habeas petition Franklin contends, among other things, that his fourteenth amendment due process and sixth amendment rights were violated because of the variance between the charge of capital murder and the conviction of first degree felony murder. He claims that capital murder does not include all of the elements of first degree felony murder and that first degree felony murder is therefore not a lesser included offense of capital murder. It is Franklin's conclusion that the trial court erred in instructing the jury on first degree felony murder, that he was denied due process in that he did not have sufficient notice of the charges against him, and that he could be subjected to double jeopardy in the form of a second murder charge.

"[A] person's [sixth amendment] right to reasonable notice of the charge against him ... is incorporated in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states." Goodloe v. Parratt, 605 F.2d 1041, 1045 (8th Cir.1979). Fair notice due process claims are cognizable in habeas corpus. Id. at 1045 n. 12. Franklin contends that the capital murder indictment did not contain all of the essential elements of first degree felony murder, that the proof at trial varied from the indictment, and that the state in effect modified or amended the indictment by trying him for first degree felony murder. He therefore claims that he did not have reasonable notice of the charges against him and that his sixth amendment and fourteenth amendment due process rights were violated.

"If a defendant is actually notified of the charge, due process notice requirements may be met, even if the [indictment] is deficient." Id. at 1046. The Missouri Court of Appeals had little difficulty in finding that Franklin had actual notice that he would be tried on a first degree felony murder theory. Franklin v. State, 655 S.W.2d 561, 564 (Mo.Ct.App.1983). In support of its finding the court cited the following facts:

Before the trial, movant filed a motion to dismiss the indictment on speedy trial grounds; the motion averred that he was awaiting trial on murder first degree. At trial, both the prosecutor and movant's attorney proceeded as if movant were charged with the offense of murder first degree. The jury was given instructions for first degree murder, second degree...

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  • Harris v. Gordy, Civil Action Number: 5:15-cv-01112-VEH-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 1 Noviembre 2017
    ...of a state indictment is [an] primarily a matter of state law. Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir. 1991); Franklin v. White, 803 F.2d 416, 418 (8th Cir. 1986). Thus, in this circuit, "the sufficiency of a state indictment is issue on federal habeas corpus only if the indictm......
  • Woodward v. Diaz, No. 2:12-cv-2168 JAM DAD P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 4 Noviembre 2013
    ...or information is primarily a question of state law." Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir.1991) (quoting Franklin v. White, 803 F.2d 416, 418 (8th Cir.1986). See also Kilgore v. Bowersox, 124 F.3d 985, 993 (8th Cir. 1997) ("Federal-court review of the sufficiency of an i......
  • Blair v. Armontrout, Nos. 86-2375
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 24 Septiembre 1990
    ...in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states.' " Franklin v. White, 803 F.2d 416, 417 (8th Cir.1986) (per curiam) (quoting Goodloe v. Parratt, 605 F.2d 1041, 1045 (8th Cir.1979)), cert. denied, 481 U.S. 1020, 107 S.Ct. 1904, 95......
  • Walters v. Maschner, No. C97-1025-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 11 Julio 2001
    ...819 F.2d 861, 864 (8th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988), in turn citing Franklin v. White, 803 F.2d 416, 417 (8th Cir.1986) (per curiam)) (emphasis in the original), cert. denied, 506 U.S. 904, 113 S.Ct. 296, 121 L.Ed.2d 220 (1992). Upon de novo ......
  • Request a trial to view additional results
25 cases
  • Harris v. Gordy, Civil Action Number: 5:15-cv-01112-VEH-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 1 Noviembre 2017
    ...of a state indictment is [an] primarily a matter of state law. Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir. 1991); Franklin v. White, 803 F.2d 416, 418 (8th Cir. 1986). Thus, in this circuit, "the sufficiency of a state indictment is issue on federal habeas corpus only if the indictment i......
  • Woodward v. Diaz, No. 2:12-cv-2168 JAM DAD P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 4 Noviembre 2013
    ...or information is primarily a question of state law." Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir.1991) (quoting Franklin v. White, 803 F.2d 416, 418 (8th Cir.1986). See also Kilgore v. Bowersox, 124 F.3d 985, 993 (8th Cir. 1997) ("Federal-court review of the sufficiency of an information......
  • Blair v. Armontrout, Nos. 86-2375
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 24 Septiembre 1990
    ...in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states.' " Franklin v. White, 803 F.2d 416, 417 (8th Cir.1986) (per curiam) (quoting Goodloe v. Parratt, 605 F.2d 1041, 1045 (8th Cir.1979)), cert. denied, 481 U.S. 1020, 107 S.Ct. 1904, 95 L.Ed......
  • Walters v. Maschner, No. C97-1025-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 11 Julio 2001
    ...819 F.2d 861, 864 (8th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988), in turn citing Franklin v. White, 803 F.2d 416, 417 (8th Cir.1986) (per curiam)) (emphasis in the original), cert. denied, 506 U.S. 904, 113 S.Ct. 296, 121 L.Ed.2d 220 (1992). Upon de novo ......
  • Request a trial to view additional results

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