From Casetext: Smarter Legal Research

Green v. Beto

United States Court of Appeals, Fifth Circuit
Apr 6, 1973
476 F.2d 601 (5th Cir. 1973)

Opinion

No. 72-2589. 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.

April 6, 1973.

Harry H. Walsh, Staff Counsel for Inmates, Texas Dept. of Corrections, Huntsville, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen., Robert Darden, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.



In this, his second round of federal habeas corpus petition, Petitioner challenges his conviction for robbery on the basis that the use of his sworn testimonies in a previous trial against a codefendant violated his Fifth and Sixth Amendment rights under Miranda. The able trial judge found Petitioner's contentions to be without merit and declined to issue the writ. We agree.

It is elementary that the stringent requirements of Miranda apply only when the Defendant is in custody. United States v. Montos, 5 Cir., 1970, 421 F.2d 215; Archer v. United States, 5 Cir., 1968, 393 F.2d 124; Evans v. United States, 5 Cir., 1967, 377 F.2d 535; United States v. Akin, 5 Cir., 1970, 435 F.2d 1011. Petitioner's alleged inculpatory statements were given during the course of a judicial proceeding and after the Petitioner had been informed of his Fifth Amendment right to remain silent by the state trial judge. This is not the invidious subterfuge which the Court faced in Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

Likewise, the mere absence of petitioner's counsel at the co-Defendant's trial does not impugn his testimony. United States v. DeLoy, 5 Cir., 1970, 421 F.2d 900; United States v. White, 5 Cir., 1971, 451 F.2d 696. The Petitioner had ample opportunity to refuse to testify or to request the advice of counsel. See United States v. Priest, 5 Cir., 1969, 409 F.2d 491.

The judgment will be

Affirmed.


Summaries of

Green v. Beto

United States Court of Appeals, Fifth Circuit
Apr 6, 1973
476 F.2d 601 (5th Cir. 1973)
Case details for

Green v. Beto

Case Details

Full title:FLOYD C. GREEN, PETITIONER-APPELLANT, v. DR. GEORGE J. BETO, DIRECTOR…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 6, 1973

Citations

476 F.2d 601 (5th Cir. 1973)

Citing Cases

State v. Gerber

Therefore, we conclude that the admission of the testimony did not violate Gerber's Fifth Amendment right…