Charlie H. Scarbrough v. A. L. Dutton, Warden, Georgia State Prison, Reidsville, Georgia
393 F.2d 6
5th Cir.
1968
Check Treatment

*1 and are convinced ed finding record by supported evi- substantial say Certainly, cannot we dence. clearly erroneous. SCARBROUGH, Appеllant,

Charlie H. Warden, DUTTON, Georgia State

A. L. Prison, Reidsville, Georgia, Appellee. No. 24740. Savannah, Ga., Gannam, for Michael J. Appeals States ‍​‌‌​​​‌‌‌‌​​​​​​​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​​‌‌​​​‌‌‌​‌‌‍United appellant. Fifth Circuit. Aрril Gordon; Gen., Atty. Marion 0. Asst. Atty. Gen., Bolton,

Arthur Mathew K. Robins, Atty. Gen., Deputy At- Asst. Ga., lanta, appellee. for BROWN, Judge, Before Chief Judges. DYER, FAHY and Circuit PER CURIAM: serving Appellant is now a life sen- for tence murder evidentiary Penitentiary. After full dis- in the Federal Court on the puted petition for fact issues his a writ Fahy, Judge, dissented. by Dis- was denied Judge. Sain,

trict Townsend Cf. error, Appellant points presents two mer- both which find ‍​‌‌​​​‌‌‌‌​​​​​​​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​​‌‌​​​‌‌‌​‌‌‍we to without it, the decision and we therefore affirm of the District Court.

Appellant initially contends that he denied of law for because he seven was incarcerated having ever hеaring. only preliminary hear probable determine Circuit, sitting designation. of the D.C. Senior Circuit *2 7 appeal. ques- of The decision federаl person for cause to hold a trial. exists might tions, any, if thereafter hearing in as in most other This arise, stage would await result. ‍​‌‌​​​‌‌‌‌​​​​​​​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​​‌‌​​​‌‌‌​‌‌‍The states, pеr a critical is not se of Georgia procedures referred became proceeding. State, criminal Moore See v. July 1, thrоugh 1967, Ha- effective 738, Ga.App. 113 149 S.E.2d 492. An Corpus 1967, beas of Act required not at this seq. (Supp.1967). Appen- any pleas See or raise defenses and Cir., Dutton, dix to v. rights may McGarrah 5th prej- no be lost which would 161, 381 F.2d 166 et see 28 And udice his defense a later trial. In U.S.C. fact, Appellant does not contend here any rights

that were lost him because My doubts about merits are serious preliminary of a failure to have a enough to lead me desire avoid a ing. Texas, 1965, Cf. Pointer v. State of appellant decision which does not afford 400, 1065, 380 U.S. 85 13 opportunity proceed an preliminary The failure hold a Georgia Compare new statute. the re more, without does not amount cent of decision this court in Kerr v. rights a violation of Dutton, Cir., 5th 393 F.2d which would vitiate the ‍​‌‌​​​‌‌‌‌​​​​​​​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​​‌‌​​​‌‌‌​‌‌‍con- State, 738, of Ga.App. case Moore v. 113 Eyman, Cir., viction. See 9 Graves v. 738, 149 S.E.2d to the effect 1967, 324; People 373 F.2d Chester of v. Georgia that California, Cir., 1966, State of 355 F.2d inherently “is stage not a critical aof 778; Pappillion Beto, S.D.Tex., 1966, v. proceeding,” citing Molignaro criminal v. F.Supp. 502; cf. Hamilton v. State Balkcom, 150, 748, 221 Ga. 143 S.E.2d 1961, Alabama, 52, 636, and Blake v. 157, Also, Appellant 7 L.Ed.2d 114. 49, denied, 924, cert. 379 U.S. for at counsel least three months before 281, 337, 85 S.Ct. and see trial and there is no contention that his Dutton, supra, Kerr v. does foreclose attorney everything necessary did not do question in the circum to secure a fair trial. stances before well be a stage. Georgia Moreover, critical Appellant also contends that he to, cases referred as well as Graves jury was sentenced returned Eyman Peoрle Chester State Judge its verdict. The Trial found as California, opinion, sited in the court's a fact this was not true and the pre involved the to counsel at a supports finding. this See liminary hearing, our in whereas Phillips Dutton, Cir., 378 F.2d volves the 898; Beto, Cir., Williams v. itself. May ap Arrested for murder Boles, Post v. pеllant confinement, remained in without denied, 332 F.2d cert. apparently counsel and without 14 L.Ed.2d 274. respect counsel, with for some three to fоur months. See Dut McGarrah v. ton, supra. He tried in December on an indictment returned in November. FAHY, (dissenting): On this respecting record all we know reрresentation Georgia statutory developments appellant Due to is that three trial, or four I since the decision District which was thrеe or four its order and remand the months after would vacate his arrest and detention, application for case for dismissal of the had counsel. We know nothing appellant capital ‍​‌‌​​​‌‌‌‌​​​​​​​​​​‌​‌‌‌‌​‌​‌‌‌‌​‌​​‌‌​​​‌‌‌​‌‌‍more. with to resort writ leave case which along corpus procеdures comes fashion, without compliance with became the command applicable Georgia during pendency regarding of this statutes effective necessarily crime,” preliminary hearing,1 and failure to hold is not accused of by rulings my opinion, controlled, in exаmination before been lack of counsel at a officer where defendant has bail, necessarily jail does not some or аrrested and held render intelligent subsequent proceedings nugatory. *3 and where there 868-869, voluntary hearing Manor of such Ga. waiver right 305, 307, pre- may dеpending result, on S.E.2d the a indictment liminary case, in void or commitment is char- the circumstances proceedings, ing subsequent as: includ actеrized ing indictment, trial and conviction. right gives a valuable which the law State, 221 148 S.E. Manor v. Ga. Ga.L.1956, to one accused crime. 2d 305.2 (Code 27-210); p. Ann. Code § lawyer recognizes A Assuming independent § fed- there is fact, op this portunity him for this affords right eral its to make the State show guarantees heаring, such state law where by putting up has hand the a a the it “becomes * * * against accused, the him guarantee enables federal constitutional against, state, know what has to defend part aas against protect his as well as to client equally to all which must afforded be commitment evi without sufficient Rodriguez, 10th defendants.” Guerra v. News-Press, Inc. dence. Savannah 473. Harley, Ga.App. 387, S.E. discovery aspects 2d 259. only bеaring hearing are factor not the repeated in the follow This view was prejudice upon possibility in this v. State Geor dicta Whitfield cаse. is the additional factor There 231, 231-232, gia, 154 S.E. delay representation, protracted ac- 2d 296: companied, the record before insofar as discloses, to his is a valu- with no as “A commitment gives one the law counsel. able any person (Supp.1967): 27-210 lowed for § 1. Ga.Code conveyed arresting Every a before such of- war- who officer diligence released. hours shall be ficer within 48 shall reasonable rant exercise person bringing arrested before examine, person 2. that all com- It is not clear to me authorized proceеdings need to be voided. event would bail and mit or receive person indictment suf- arrested before new fice, on already hold cоuld hours after since the trial within 72 officer “opportunity supply previous arresting lack of shall noti- officer arrest. The by put- fy where its hand аs when and the State show the accused against ting up it has to be held. the evidence accused, him what which enables to know not notified of who is The offender * against place he has defend of the commitment time supra re- ing, be shall Manor v. State In federal habeаs leased. * * proceedings, Ann, (Supp.1967): “The court shall 27-212 jus dispose every as of the matter law and of an arrest without required,” arresting pеrson Irvin shall tice 28 U.S.C. a warrant Dowd, 717, 728-729, delay convey offender before Pate, 1639, 6 Reck v. authorized to officer most convenient and issue war- an affidavit receive No, imprisonment shall rant. such beyond legal time al- reasonable