*1 WILSON, Petitioner-Appellant, Francis WIMAN, Superintendent,
Martin J. Ken tucky Reformatory, Respondent- Appellee.
No. 17539.
United States Court of Sixth Circuit.
Dec. Cole, Francis, J. John David David
Bowling Green, Ky., appellant. for Gen., Runyan, Atty. Charles W. Asst. Frankfort, Ky., appellee, Mat- Robert thews, Atty. Frankfort, Ky., Gen., brief. O’SULLIVAN, PHILLIPS Before Judges.
CELEBREZZE, Circuit
CELEBREZZE, Circuit
In 1964 the Petitioner was convicted
Monroe
Circuit Court of storе-
breaking and,
offender,
a third
imprisonment
was sentenced to
au-
life
Kentucky’s
thorized
Habitual
Act,
per-
Criminal
He
K.R.S.
413.190.
§
highest
fected an
Kentucky,
Commonwealth,
Wilson
(Ky.1966),
and after affirm-
conviction,
ance of his
he exhausted the
available state
conviction remedies.
Wilson
S.W.2d
ap-
then filed
*2
969
corpus
also
plication
a
habeas
in
face of
the indictment.
It was
of
writ
attorney
Stagner
for the
shown that an
named
District Court
the United States
Kentucky.
began
County
practicing
is
It
District
of
law Warren
Western
that
the
in 1932.
denial of that writ
from the
appeal is taken.
stant
primarily
Petitioner
relies
justifying
grounds
Two
are asserted
allegation
upon
the fact that
bare
and
his
corpus
first
relief.
Petitioner
habeas
breaking
pleaded guilty
he
to
into the
that
the habitual criminal con-
contends
house in
he lived. He contends
which
the reason that
cannot stand for
viction
permit
plea.
lawyer
no
a
would
such
that
upon
the
which the
of
one
pre
the
Also
contends
that
Petitioner
void,
indictment
based
recidivist
was
was
regularity
proce
sumption
court
of
оf
having
at a trial where
been obtained
it
give way in
dures must
this case
represented
Petitioner was
the
not
of counsel.
waiver
Secondly
Petitioner
counsel.
upon
of
But
this
reliance
conflict
trying
Kentucky procedure of
the
that
misplaced;
presumptions
the
before
the
crim-
instant crime and
habitual
the
es
conflict
the Petitioner must
arises
proceeding
de-
count
the same
inal
at
tablish that he did not have counsel
Recog-
strоyed
jury’s impartiality.
the
Judge
not
his trial.1 The District
was
nizing
that
of
v. State
persuaded by
presented,
the
17 L.Ed.2d
385 U.S.
87
appeal
and from the record on
we cannot
(1967),
contention,
606
foreclosed
clearly
say
finding of
fact was
that
petition to
Petitioner
amended his
erroneous.
assert
that
failure of the triаl court
give any
to
Craig v.
United States ex rel.
from the
removed
case
Myers,
(3rd
1964),
and
329
Cir.
rule.
Lynch
Fay,
United
ex
184
States
rel.
appears
F.Supp.
(S.D.N.Y.1960), upon
the first
277
whiсh
that
support
dwelling
first con
Petitioner was convicted of
Petitioner
relies
breaking
tention,
point.
not
In
house
in the Warren
both
Circuit
clearly
adеquate
those
1933. No
cases it was
established
trial court
first
clarify
records were
the Petitioner was
counsel
the cir-
that
without
available
surrounding
trial,
Perhaps
at
at
his earlier
cumstances
mere
but
appearance
“Stagner”
clearly
on the
least
two facts are
the name
established:
have
the time of
Petitioner’s
would
been
his first
indictment
At
eighteen,
that
was
Petitioner was
at the
insufficient
to show
Petitioner
and
represented
рleaded guilty
breaking
Harris v.
trial he
into
counsel. Cf.
Boles,
1965).
(4th
But
of an
had
349 F.2d
uncle who
taken him
607
Cir.
orphan.
produced
here the
evidence con
as an
The Petitioner
claims
cerning
customary practice
he did not
advice of
that
have the
counsel
;was
Stagner
making
plea
that
and
he did
and evidence
rights
practicing attorney
right
time
at the
not
nor
area
waive
proof coupled
juvenile.
of the trial.
with the
Several
This
affiants
tеstified that
regularity
pro
presumption of
in court
were around the courthouse on the
Peti
cedures
sufficient
overcome
date of
and did
recall
allegation
seeing
attorney
that he
with
tioner’s bare
was
Petitioner.
indictment, however,
out
Had Petitioner
established
theOn
Petitioner’s
counsel.
heavy
counsel,
“Stagner”
written,
that he
name
evi-
was without
was
upon
presented
rested
the State
burden would have
dence was
it was the cus-
right
hаd
prove
to counsel
tom in the
of that area
enter
courts
intelligently
knowingly
waived.
counsel on the
been
name
defense
presencе
defense
silent
88 S.Ct.
(1967),
record
the instant
In
case
does not
change
affirmative indication that
the result
in this case. There
contains an
represеnted
question
Appellant
at
the records
indicated that the
counsel or
1933 trial.
defendant was without
were
timely objection
Cochran,
Carnley
unless
(1962);
v. United
United
made to the trial court. Nutt
States
1964).
States,
Jackson,
(10th
F.2d
Cir.
rel.
250 F.2d
ex
Savini
Having
Dirring
1957).
F.2d
(2d
failed
United
Cir.
(1st
1964). Kentucky
however,
proof,
follows
does not have
Cir.
*3
Neеly Commonwealth,
presumption
same rule.
of the
benefit
(Ky.1959). Although
waiver of
S.W.2d 79
jury
exposure of the
to cer-
true that the
ground the
second
prejudicial
held so
tain evidence has been
though
that,
pro-
the recidivist
jury
will cure
that no instruction to
might
Kentucky
permissible
cedure in
be
Spencer comрels
prejudice,2
con-
rule,
Spencer
the failure of
properly
prior
clusion that
give limiting
judge to
trial
category.
troduced are not in thаt
concerning
jury
prior
convic-
deny
prejudiced
tions so
his case as to
According to
appear
him fair trial.
It does
from
preju
instruction
сured
would have
the record
Court whether
Pe
effects
introduction of
dicial
of the
request for an instruction was made at
prior
The Peti
titioner’s
convictions.
charge
jury.
the time of the
Nor
represented by
tioner was
counsel at his
objection
appear
does it
was made to trial,
аppeal,
post
on his
and at his State
judge
charge
the failure of the trial
Having by
proceedings.
conviction
prior
convictions. Also
objеct
passed
opportunity
prior
Kentucky
of the
decisions
Court
proceed
in these
lack of an instruction
relative to the instant case
ings, the Petitioner cannot
raise the
now
give
point
no indication that
attack
issue
a federal collateral
on
in the
ever raised
or
proceeding.
judgment
The
of the District Court is
Moreover, the instant case is not
affirmed.
Spencer.
factually
Here the
identical
Petitioner elected to take the
stand
PHILLIPS, Circuit
Concur-
testify
The
own defense.
ring.
prior
of his
properly admissible,
convictions would have been
agree
regu-
I
therеfore,
as affect
larity
procedures
ing
credibility
of court records and
of the Petitioner as
sufficient under
support
the facts of this casе
witness. Patton
appellant
conclusion that
Court
So this
represented by
Spencer-type
counsel at his trial
is not faced with a
case but
court in 1933.
proposition
State
the introduc
properly
tion of the
admissible evidence
I concur in the second
prior
of the Petitioner’s
convictions was opinion only
because
Court is bound
prejudicial
the failure of
trial
by
majority
opinion
sponte
jury
court to sua
instruct the
as to
554,
State
648,
application
deprived
of that evidence
606,
which was followed
guaran
the Petitioner of a fair trial as
Haggard Henderson,
teed
Clausе of the
Due Process
(6th Cir.).
I
Otherwise would reverse
Amendment.
Fourteenth
expressed
for the reasons
in the dissent-
ing opinion
Spen-
jury
the Chief Justice in
Deficiencies
instruc
concurring
tions,
cer v.
of Texas
generally
and his
waived unless
opinion
appeal,
v. State of
are asserted on
and in the usual
deficiency
U.S.