McTyre v. Pearson
| Citation | 435 F.2d 333 |
| Decision Date | 17 December 1970 |
| Docket Number | No. 20272.,20272. |
| Parties | George E. McTYRE, Appellant, v. Gerald E. PEARSON, Prosecuting Attorney of the Second Judicial Circuit of Arkansas, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Jack Lessenberry, Little Rock, Ark., filed briefs for appellant.
Joe Purcell, Atty. Gen., and Mike Wilson, Asst. Atty. Gen., Little Rock, Ark., filed brief for appellee.
Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by petitioner McTyre from final order of the District Court dismissing his petition without prejudice. Petitioner in his pro se petition sought a dismissal of charges of forgery and uttering pending against him in the Arkansas State court upon the ground petitioner had been denied his federal Sixth Amendment right to a speedy trial.
Petitioner at times here material was serving a federal sentence at the Federal Correctional Institution at Texarkana, Texas.
Petitioner sets out the following chronological résumé of material events:
The trial court in its opinion recognized that a serious question existed with respect to its jurisdiction in the present situation where the petitioner is confined outside of the territorial jurisdiction of the court in which the action is brought. The Supreme Court in Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578, recognized the conflict between the circuits on the jurisdiction issue but chose not to resolve such conflict in the case before it. The Court suggests at fn. 5 that the logical solution of the problem is an appropriate amendment to 28 U.S. C.A. § 2241.
Like the trial court, we find it unnecessary and undesirable to rest dismissal on the jurisdictional grounds.
The trial court as a basis for dismissing the complaint without prejudice states:
We affirm the dismissal without prejudice.
The petitioner in his brief at appendix B sets out certified copies of judgment of conviction of defendant by a jury on June 2, 1970, on six charges of forgery and uttering on each of which he was sentenced to five years imprisonment. Thus it appears petitioner's State trial was held within thirteen months after the filing of the charges.
It is well-established that the Sixth Amendment right to a speedy trial is enforceable against the states by virtue of the Fourteenth Amendment. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.
The principles applicable to this resolution of the speedy trial issue are well summarized by Mr. Justice Blackmun while a member of this court in Hodges v. United States, 408 F.2d 543, 549-551. Each case must be determined upon its own facts and circumstances. Upon the basis of the Hodges standards, petitioner is entitled to no relief. The State court motion to dismiss...
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Cooper v. United States Board of Parole, LR-71-C-246.
...represent him. The appointment of counsel for an indigent person in a case of this kind is discretionary with the Court, McTyre v. Pearson, 8 Cir., 1970, 435 F.2d 333, and the Court does not consider that the appointment of counsel in this case would serve any useful The Court has given car......
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U.S. v. Degand, No. 79-1549
...hearing is not required, the district court retains discretion to determine whether counsel should be appointed. McTyre v. Pearson, 435 F.2d 333, 335 (8th Cir. 1970), Cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 117 (1971). It was not an abuse of that discretion in this instance fo......