Summary
In Moore v. Eyman, 464 F.2d 559 (C.A.9 1972) the court held that the habeas petitioner was not entitled to relief on the ground that his conviction was based on identification by eyewitness at lineup at which he had requested but was denied counsel where the lineup occurred prior to indictment or other initiation of adversary judicial proceedings.
Summary of this case from Young v. State of OklahomaOpinion
No. 71-2847.
July 13, 1972.
Edward C. Rapp (argued), of Tupper, Rapp, Salcito Schlosser, Phoenix, Ariz., for petitioner-appellant.
William P. Dixon, Deputy Atty. Gen. (argued), Roderic A. Dietz, Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.
Appeal from the United States District Court for the District of Arizona.
Before MERRILL, ELY and TRASK, Circuit Judges.
Appellant, an Arizona state prisoner, seeks release by writ of habeas corpus. He contends that his conviction was based on identification by an eyewitness who had picked him out of a line-up and had so testified; that appellant had requested and been denied counsel at the time of the line-up. He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
The line-up, however, was prior to indictment (or other initiation of adversary judicial proceeding) and right to counsel had not attached. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).
Further, findings of the District Court after a full evidentiary hearing render Wade and Gilbert inapplicable. The court found that the in-court identification was completely independent of the line-up identification. United States v. Wade, 388 U.S. 218, 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also, United States v. Breaux, 450 F.2d 948 (9th Cir. 1971). This finding was not clearly erroneous. Indeed, it was overwhelmingly supported by the record. Any testimonial reference to the line-up at the time of trial was harmless beyond a reasonable doubt. Gilbert v. California, 388 U.S. 263, 272-274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
Affirmed.