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Miler v. Wainwright

United States Court of Appeals, Fifth Circuit
Oct 17, 1973
485 F.2d 185 (5th Cir. 1973)

Opinion

No. 73-2153. Summary Calendar.

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

October 17, 1973.

J. Michael Hayes, Tampa, Fla. (Court-appointed), for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Baya Harrison, III, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.



Miller, a Florida state prisoner, appeals from the denial of habeas corpus after an evidentiary hearing. He attacks his state court conviction and sentence for second degree murder on two grounds: (1) illegal search and seizure of a weapon introduced at his trial; (2) denial of his constitutional right to full and adequate cross-examination. We affirm.

The evidence fully supported the district court's finding of probable cause to arrest the defendant. The district court also correctly held that the search and seizure of the weapon which occurred at about the same time as defendant's arrest was therefore lawful, being incidental to the arrest. See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Lovelace v. United States, 5 Cir. 1966, 357 F.2d 306, 310; Holt v. Simpson, 7 Cir. 1965, 340 F.2d 853.

Appellant's second ground relates to unsuccessful attempts to cross-examine prosecution witnesses concerning an alleged statement of appellant made at or near the time of his arrest. Our review of the circumstances does not convince us that the matter complained of rises to constitutional proportions even if the state trial court erroneously restricted cross-examination. See Summerville v. Cook, 5 Cir. 1971, 438 F.2d 1196.

Affirmed.


Summaries of

Miler v. Wainwright

United States Court of Appeals, Fifth Circuit
Oct 17, 1973
485 F.2d 185 (5th Cir. 1973)
Case details for

Miler v. Wainwright

Case Details

Full title:JOHNNIE LEE MILLER, PETITIONER-APPELLANT, v. LOUIE L. WAINWRIGHT…

Court:United States Court of Appeals, Fifth Circuit

Date published: Oct 17, 1973

Citations

485 F.2d 185 (5th Cir. 1973)

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