Kayton v. Wainwright
| Decision Date | 04 November 1968 |
| Docket Number | No. 25001.,25001. |
| Citation | 402 F.2d 471 |
| Parties | Paul Oliver KAYTON, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul Oliver Kayton, pro se.
David U. Tumin, Asst. Atty. Gen., Tallahassee, Fla., for appellee.
Before BROWN, Chief Judge, and WISDOM, Circuit Judge, and BREWSTER, District Judge.
This is an appeal from the denial of habeas corpus relief to a Florida state convict, without a hearing and without requiring a return and answer by the respondent. We reverse.
The following grounds alleged by appellant require an evidentiary hearing unless they should be conclusively refuted in the manner provided in 28 U.S.C.A. §§ 2245-2249, 2254, by records which may be furnished with respondent's return and answer:
1. Appellant was arrested for public intoxication as a pretext for a warrantless search and seizure of evidence which was later used against him on his trial. Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); Amador-Gonzalez v. United States, 5 Cir., 391 F.2d 308 (1968).
2. His lineup confrontation was so unnecessarily suggestive and conducive to mistaken identification as to amount to denial of due process. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967); Palmer v. Peyton, 4 Cir., 359 F.2d 199 (1966).
The appellant also attacks his conviction on the further grounds that his request for appointment of counsel at his preliminary hearing was refused, even though he was an indigent, and that he was denied effective assistance of counsel at his arraignment. As they now stand, each of those grounds is defective. It is not alleged that any evidence obtained at the preliminary hearing was used at appellant's trial. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); King v. Wainwright, 5 Cir., 368 F.2d 57 (1966); Harris v. State, Fla., 162 So.2d 262 (1964). Appellant entered a plea of not guilty when he appeared with an assistant public defender for his arraignment. There is no allegation any injury occurred as a result of the manner in which he was represented at that time. Even though such grounds are defectively pleaded, it would be well for the trial court to see that the facts relevant to them are developed along with those pertinent to the other contentions, if it appears after the filing of a return and answer by the respondent that a hearing should...
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...allege that he was prejudiced at trial by the acts or facts which support the ground under which he seeks relief. Kayton v. Wainright, 402 F.2d 471 (5th Cir. 1968). Although petitioner had the right to be told that he could remain silent or could consult an attorney, he has failed to allege......
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