*1 535 SHEPARD, R. Petitioner- Readus Appellant,
v. Director, WAINWRIGHT, Divi-
Louie L. Florida, Corrections, sion of of State Respondent-Appellee. No. 28859
Summary Calendar. Appeals, of States Court
United Fifth Circuit. 9,
April 1970.
Rehearing Rehearing En Denied and 27, May Banc Denied 1970. Shepard, pro se. R.
Readus Gen., Atty. of Faircloth, State Earl Tallahassee, Fla., Florida, Morton J. Fla., Atty. Gen., Lakeland, Hanlon, Asst. appellee. for AINSWORTH, BELL, and Before Judges. GODBOLD, Circuit PER CURIAM: an or appeal from taken This is denying with the court der of district hearing petition Florida of a the out a corpus. for writ habeas convict the of part.1 part in remand in and We reverse serving presently a five Appellant is having year con- been sentence after uttering forged by jury a in- a of victed appeal, convic- direct the On strument. State, Shepard tion v. was affirmed. Fla.App.1968, 11. 213 So.2d writing. Murphy Well v. Houma 1. to 18 Rules of this in Sec Pursuant Rule of the 804, 1969, Service, Court, Part 409 F.2d on the merits 5th Cir. we have concluded Company, I; Pacific not Huth v. Southern of such character as and this case is that 1969, 526, argument justify F.2d Part have direct th 417 to oral and Cir. 5 place on I. the case the Sum ed the clerk to notify parties mary and to the Calendar *2 536 alleged Appellant in federal habeas 1, his court denied relief on October 1968. analysis handwriting petition con- that a The Appeals Second District Court of of illegally by sup- the 19, ducted state was Florida affirmed on March 1969.
pressed. Supreme he He also claimed that was The Court of Florida denied by corpus April 24, identified at his trial who witnesses habeas Shep- on 1969. previously Wainwright, had identified him at an im- ard v. Fla.1969, 225 So.2d properly lineup. The conducted district 531. holding
court denied relief without an The record does not indicate evidentiary hearing. petition the whether to the Florida Su preme presented Court the constitutional ground, appel toAs the first challenge pre-trial lineup to the and its lant contends that two witnesses state effect on the in-court identification. appellant testified that endorsed the Thus, part judgment that of deal the forged presence in the check their and ing lineup question the va with must be suppressed the results of a hand state cated and remanded to the district court writing analysis which disclosed that the to determine whether the issue has been signature endorsement not written was presented Supreme by to the Florida Court. reject appellant. The district court If the district court the determines that First, ed this claim for two reasons. presented issue was the to Florida Su it from was found the the record that preme Court, then the court only district appellant testified witnesses that appellant’s should consider the merits of wrote an address the on of in back the Conversely, appellant claim. if not has Second, handwriting strument. the anal yet sought ysis relief from the impeachment Florida Su was at most evidence preme ground, appellant charged Court on this the district since was with utter ing forged deny court should instrument, the to writ for failure a not with for exhaust available state analysis remedies. gery, and thus the as to the signature endorsement was immaterial. judgment The below is reversed toas It is not clear from the state rec court suppressed the issue of evidence. That ord that the witnesses limited their tes part judgment dealing of the the with timony appellant having only to written propriety lineup of the is The vacated. the address on the check. This should ease is to remanded the district for court hearing have been clarified in a the in proceedings further not inconsistent Moreover, federal habeas court. the is herewith. appellant sue the was identification of part, in Reversed vacated and remand- analysis handwriting and the should part. ed in have been examined in an effort to de bearing, termine any, its if on whether ON PETITION FOR REHEARING appellant’s the address was in hand AND PETITION FOR REHEAR- writing. evidentiary hearing an Thus ING EN BANC on this issue was indicated. PER CURIAM: The district court denied the second ground for relief for failure to exhaust The Rehearing Petition for de- is state remedies. The record a includes nied and no panel member of nor this copy appellant’s of motion Judge to the regular state in active on the service judgment trial court to pur- set aside the having requested Court that the Court be 1.850, suant to Fla.R.Crim.P., Rule polled 33 rehearing banc, (Rule on en 35 motion, F.S.A. appellant In that raised Appellate Procedure; Federal Rules of the same issues as contained in his fed- Local 12) Fifth Circuit Rule the Peti- eral petition. habeas The state trial Rehearing tion for En Banc is denied.