O'NEAL v. Beto
| Decision Date | 17 July 1970 |
| Docket Number | No. 29092.,29092. |
| Parties | Lynwood O'NEAL, Jr., Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Howard M. Fender, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.
William M. Schultz, Houston, Tex., for petitioner-appellee.
Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.
Director of the Texas Department of Corrections appeals from the grant of a writ of habeas corpus setting aside the conviction of the appellee, Lynwood O'Neal, Jr., on the ground that during his state court trial there had been admitted in evidence articles of clothing taken from him at a time when he was held under an illegal arrest.
The district court in the federal habeas corpus proceedings found that the appellee was picked up or arrested without what could reasonably amount to probable cause, and charged with the offense of "vagrancy," a charge which the trial court found to be utterly without foundation and in no way connected with the charge of rape subsequently filed against him, and which charge the trial court found to be "a sham and a fraud — a mere device to detain suspects."
The state bases its principal arguments here on the failure of O'Neal to seek relief from his state court conviction, so far as he was prejudiced by the requirement that he surrender his underwear for police inspection and subsequent use on the trial, by utilizing the Texas post-conviction remedy contained in Article 11.07, Texas Code of Criminal Procedure. O'Neal replies that the precise point which he seeks to make in his federal habeas corpus case, to-wit, the use by the state of evidence obtained following an illegal arrest, and thus a deprivation of his constitutional rights, was presented by him on direct appeal to the Texas Court of Criminal Appeals, and decided against him in that court. It is clear that the Texas appellate court decision expressly held that there was probable cause for the arrest and that the arrest was in no other manner illegal. Moreover, that court held that the surrender of the underwear by O'Neal was voluntary.
We cannot help noticing the waste of judicial manpower and the time of voluntary counsel appointed by the court that results when we have to decide that, after a final evidentiary hearing in the district court and a full appeal and argument here, it becomes the duty of the court to determine that state remedies have not been exhausted under 28 U.S.C.A. 2254(b) and within the concept of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, until the state has been given an opportunity to consider once again, after conviction, a petitioner's contention of a constitutional deprivation of his rights when adequate post-conviction remedies are...
To continue reading
Request your trial
-
Wynn v. Smith
...* * be applied mechanically without regard to factual setting." Pate v. Holman, 343 F.2d 546, 547 (C.A.5 1965). See, e. g., O'Neal v. Beto, 428 F.2d 1164 (C.A.5 1970); Montos v. Smith, 406 F.2d 1243 (C.A.5 1969); Beto v. Martin, 396 F.2d 432 (C.A.5 1968); Hill v. Beto, 390 F.2d 640 (C.A.5 1......
- United States v. Avey
-
McWilliams v. Estelle
...for relief raised in this court are identical to those raised in the state court, state remedies have been exhausted. O'Neal v. Beto, 428 F.2d 1164 (5th Cir. 1970); Young v. Alabama, 427 F.2d 177 (5th Cir. Relying on Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967) petitioner contends that he ......
-
Woods v. Beto
...372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963), O'Neal v. Beto, 428 F.2d 1164 (5th Cir. 1970), and Texas v. Payton, 390 F.2d 261 (5th Cir. 1968). Further, this ground for the application will be dismissed without prejudi......