Marlin v. State of Florida, No. 73-3503 Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation489 F.2d 702
PartiesBill R. MARLIN, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
Decision Date15 February 1974
Docket NumberNo. 73-3503 Summary Calendar.

489 F.2d 702 (1974)

Bill R. MARLIN, Petitioner-Appellant,
v.
STATE OF FLORIDA, Respondent-Appellee.

No. 73-3503 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

February 15, 1974.


Bill R. Marlin, pro se.

Joel Rosenblatt, Linda C. Hertz, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.

Before COLEMAN, DYER and RONEY, Circuit Judges.

PER CURIAM:

This is an appeal from the district court's denial of federal habeas corpus relief to Marlin, a Florida state prisoner. We affirm.

After unsuccessfully challenging his conviction on direct criminal appeal, Marlin v. State, Fla.App.1972, 268 So.2d 548, Marlin filed a habeas petition in the court below raising the same contentions as were rejected by the state court. As grounds for relief, Marlin alleged: (1) he was deprived of a fair trial by certain prejudicial remarks made by the prosecutor during the closing argument, as well as by the trial judge's refusal to strike the testimony of one witness; and (2) the jury panel from which Marlin's jury was selected was illegally constituted under the Florida Supreme Court's pronouncement in State v. Silva, Fla.1972, 259 So.2d 153.

Marlin's first contention does not present error of constitutional magnitude. Bryant v. Caldwell, 5 Cir. 1973, 484 F.2d 65; Buchannon v. Wainwright, 5 Cir. 1973, 474 F.2d 1006.

As to the second contention, the district court held that Marlin was precluded from attacking the composition of his jury for failure to timely object to the jury array.1 The court concluded that under Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d

216, the failure to timely object must be construed as a waiver of any future challenge to the jury selection. We agree. Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275 No. 73-2982, January 17, 1974.

Affirmed.

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Notes:

* Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 Counsel for Marlin made an objection to the jury array immediately following its selection. The Florida appellate court found that this did not meet the requirements of Rule 3.300, Fla.Cr.P.R., 33 F.S.A., which requires that the objection be in writing and filed prior to examination of any prospective juror.

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  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 8, 1984
    ...Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure to comply with state procedural requirements can be a waiver of the right to assert a constitutional violation. Wa......
  • Smith v. Kemp, No. 83-8611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1983
    ...Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure to comply with state procedural requirements can be a waiver of the right to assert a constitutional violation. Wa......
  • Arnold v. Wainwright, No. 74-2724
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 4, 1975
    ...Henderson, 1975, --- U.S. ---, 95 S.Ct. 1674, 44 L.Ed.2d 99; Jones v. Henderson, 5 Cir. 1974, 494 F.2d 47; Marlin v. Florida, 5 Cir. 1974, 489 F.2d 702. 5 Petitioners assert that the Supreme Court has recently reaffirmed that the deliberate by-pass standard is to be applied when there is an......
  • Dumont v. Estelle, No. 74-2903
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 30, 1975
    ...562; Newman v. Henderson, 5th Cir. 1974, 496 F.2d 896; Jones v. Henderson, 5th Cir. 1974, 494 F.2d 47; Marlin v. Florida, 5th Cir. 1974, 489 F.2d 702. Our analysis begins with a rule of federal constitutional It is beyond question that under the Due Process Clause of the Fourteenth Amendmen......
  • Request a trial to view additional results
15 cases
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 8, 1984
    ...Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure to comply with state procedural requirements can be a waiver of the right to assert a constitutional violation. Wa......
  • Smith v. Kemp, No. 83-8611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1983
    ...Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure to comply with state procedural requirements can be a waiver of the right to assert a constitutional violation. Wa......
  • Arnold v. Wainwright, No. 74-2724
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 4, 1975
    ...Henderson, 1975, --- U.S. ---, 95 S.Ct. 1674, 44 L.Ed.2d 99; Jones v. Henderson, 5 Cir. 1974, 494 F.2d 47; Marlin v. Florida, 5 Cir. 1974, 489 F.2d 702. 5 Petitioners assert that the Supreme Court has recently reaffirmed that the deliberate by-pass standard is to be applied when there is an......
  • Dumont v. Estelle, No. 74-2903
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 30, 1975
    ...562; Newman v. Henderson, 5th Cir. 1974, 496 F.2d 896; Jones v. Henderson, 5th Cir. 1974, 494 F.2d 47; Marlin v. Florida, 5th Cir. 1974, 489 F.2d 702. Our analysis begins with a rule of federal constitutional It is beyond question that under the Due Process Clause of the Fourteenth Amendmen......
  • Request a trial to view additional results

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