This court has recently held that when the police fail to preserve the photographic array used in a pretrial photographic line-up "there shall exist a presumption that the array is impermissibly suggestive." Branch v. Estelle, 631 F.2d 1229, 1234 (5th Cir. 1980). Therefore, we shall assume that the photographic array shown to the three savings and loan employees was impermissibly suggestive.
In Sales, the United States Court of Appeals for the Second Circuit rejected a "conclusive presumption of suggestiveness from the failure of the police to preserve [a] photo array." Sales, 675 F.2d 538 n.3 (rejecting Branch v. Estelle, 631 F.2d 1129 (5th Cir. 1980)). Nor did the Sales court "draw an inference of suggestiveness" based on the officer's failure to preserve the photographs.
More specifically, federal habeas relief may only be granted on a state charging document where that indictment was so defective as to deprive the trial court of jurisdiction. DeBenedictis v. Wainwright, 674 F.2d 841, 842-43 (11 Cir. 1982), citing, Branch v.Estelle, 631 F.2d 1229, 1233 (5 Cir. 1980). A charging document that sets forth the elements of the offense in language clear enough to enable the defendant to plead a bar in jeopardy does not raise a jurisdictional defect.
More specifically, federal habeas relief may only be granted on a state charging document where that indictment was so defective as to deprive the trial court of jurisdiction. DeBenedictis v. Wainwright, 674 F.2d 841, 842-43 (11 Cir. 1982), citing, Branch v. Estelle, 631 F.2d 1229, 1233 (5 Cir. 1980). A charging document that sets forth the elements of the offense in language clear enough to enable the defendant to plead a bar in jeopardy does not raise a jurisdictional defect.
The sufficiency of an indictment is a matter of state law. Johnson v. Puckett, 930 F.2d 445, 447 (5th Cir.), cert. denied, 112 S.Ct. 252 (1991); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). A petitioner is not entitled to federal habeas relief unless the indictment is so defective that the state court lacks jurisdiction.
The sufficiency of an indictment is a matter of state law. Johnson v. Puckett, 930 F.2d 445, 447 (5th Cir.), cert. denied, 112 S.Ct. 252 (1991); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). A petitioner is not entitled to federal habeas relief unless the indictment is so defective that the state court lacks jurisdiction.
The sufficiency of an indictment is a matter of state law. Johnson v. Puckett, 930 F.2d 445, 447 (5th Cir.), cert. denied, 112 S.Ct. 252 (1991); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). A petitioner is not entitled to federal habeas relief unless the indictment is so defective that the state court lacks jurisdiction.
Accordingly, the petitioner contends that the court should have presumed it to be impermissibly suggestive and therefore excluded it. In support of this argument, petitioner relies solely on two Fifth Circuit decision, Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980), and United States v. Sonderup, 639 F.2d 294 (5th Cir. 1981), reh'g denied, 453 U.S. 928, 102 S.Ct. 892, 69 L.Ed.2d 1024 (1981), which adopt a conclusive presumption of suggestiveness whenever the photo array is not introduced into evidence. The Attorney General argues that the evidence was properly admitted since the record casts no doubt on the identification procedures used by the Boston Police Department, and thus there is no reason to presume they were suggestive.
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Cupp v. Naughten, supra. See also Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). Statements that might be considered "improper, undesirable or even universally condemned [do] not [necessarily] rise to the level of constitutional violations."
Because the date of the offense was not an essential element of the offense, the error in the original indictment was of form, not substance, and was not fatally defective. Steele, 178 F.3d at 1234; Hume, 118 F. at 696; see also Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). The error in the original indictment also was cured so long as Mcintosh's plea of guilt was knowing and voluntary.