Henderson v. United States, 27360 Summary Calendar.
| Decision Date | 08 January 1970 |
| Docket Number | No. 27360 Summary Calendar.,27360 Summary Calendar. |
| Citation | 419 F.2d 1277 |
| Parties | Dillard Elean HENDERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dillard Elean Henderson, pro se.
H. M. Ray, U. S. Atty., Roger M. Flynt, Jr., Asst. U. S. Atty., Oxford, Miss., for appellee.
Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
This case comes to us from the District Court's denial without an evidentiary hearing of Petitioner's § 2255 motion to vacate sentence.1 Petitioner contends that his conviction was obtained in violation of the Due Process Clause of the Fifth Amendment, his Sixth Amendment rights to counsel and to confront the witnesses against him, F.R. Crim.P. 43, and his right to trial by an impartial jury. Zeroing in on these broad claims Petitioner asserts that (1) he was absent during part of the impaneling of the jury, (2) a juror slept through part of the trial, and (3) his attorney was not present for all the examination of a prosecution witness. We find all these contentions to be without merit and affirm.
Petitioner's first contention is that he was not present during part of the impaneling procedure and that his presence is required by F.R.Crim.P. 43, which provides that "the defendant shall be present * * * at every stage of the trial including the impaneling of the jury * * *." Although Petitioner's statement that he was not present is shown by the record to be factually correct, we find that the error was harmless and should be disregarded under F.R.Crim.P. 52(a).
To handle challenges for cause the Judge and counsel withdrew to the Judge's chambers. During Petitioner's absence from chambers five things happened: the government announced it had no challenges for cause. Petitioner's attorney challenged one juror for cause, which challenge was granted. Another juror was substituted and the United States announced it was satisfied. Petitioner's attorney announced he was satisfied with the juror. The United States announced that it had no peremptory challenges with respect to the remaining 12 jurors. At this stage on discovery that defendant was not present, he was brought into the Judge's chambers and the Court asked his counsel whether there was "any need * * * to go back through the preliminaries with respect to the exercise of challenges for cause." To this his counsel answered with a categorical "No." The momentary error of inadvertently allowing Petitioner to be absent brought no harm upon him since nothing occurred to his detriment, the Trial Court offered an opportunity to go back through the entire procedure, which was declined, and Petitioner was present during the entire peremptory challenge period and only 6 of his 10 peremptory challenges were exercised.
Petitioner's second contention is that he was denied his Sixth Amendment right to trial by jury because a juror fell asleep during the trial. We agree that nothing was shown requiring a further hearing either as to the occurrence or timely notice to the Court to permit corrective action.
Petitioner's last contention is that he was denied...
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