U.S. Court of Appeals for the Fifth Circuit, 1974

Marlin v. Florida

U.S. Court of Appeals for the Fifth Circuit · Decided February 15, 1974

489 F.2d 702; 1974 U.S. App. LEXIS 10044 (Federal Reporter, Second Series)

Counsel

Bill R. Marlin, pro se., Joel Rosenblatt, Linda C. Hertz, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.

Cases that cite this one

11 later published cases cite this decision. The 9 that cite it most often are listed here.

John Eldon Smith v. Ralph M. Kemp, Superintendent, Georgia Diagnostic & Classification Center (11th Cir. 1983)
Jones v. Henderson (5th Cir. 1974)
Morgan v. Zant (United States District Court for the Southern District of Georgia 1984)
Fritz Whittington v. W.J. Estelle, Jr., Director, Texas Department of Corrections (5th Cir. 1983)
David Huffman v. Louie L. Wainwright, Secretary, the Department of Offender Rehabilitation, Etal. (5th Cir. 1981)
Guss Maggitt v. Donald Wyrick, Warden, Missouri State Penitentiary (8th Cir. 1976)
Carl Everett Arnold v. Louie L. Wainwright, Director, Division of Corrections (5th Cir. 1975)
Eric Morris and Riley Sanders, on Behalf of Themselves and All Others Similarly Situated v. L. B. Sullivan, Etc. (5th Cir. 1974)
Partida v. Castaneda (District Court, S.D. Texas 1974)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM:

This is an appeal from the district court’s denial of federal habeas corpus relief to Marlin, a Florida state prisoner. We affirm.

After unsuccessfully challenging his conviction on direct criminal appeal, Marlin v. State, Fla.App.1972, 268 So.2d 548, Marlin filed a habeas petition in the court below raising the same contentions as were rejected by the state court. As grounds for relief, Marlin alleged: (1) he was deprived of a fair trial by certain prejudicial remarks made by the prosecutor during the closing argument, as well as by the trial judge’s refusal to strike the testimony of one witness; and (2) the jury panel from which Marlin’s jury was selected was illegally constituted under the Florida Supreme Court’s pronouncement in State v. Silva, Fla.1972, 259 So.2d 153.

Marlin’s first contention does not present error of constitutional magnitude. Bryant v. Caldwell, 5 Cir. 1973, 484 F.2d 65; Buchannon v. Wainwright, 5 Cir. 1973, 474 F.2d 1006.

As to the second contention, the district court held that Marlin was precluded from attacking the composition of his jury for failure to timely object to the jury array.1 The court concluded that under Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d *703216, the failure to timely object must be construed as a waiver of any future challenge to the jury selection. We agree. Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275 [No. 73-2982, January 17, 1974].

Affirmed.

. Counsel for Marlin made an objection to the jury array immediately following its selection. The Florida appellate court found that this did not meet the requirements of Rule 3.300, Fla.Cr.P.R., 33 F.S.A., which requires that the objection be in writing and filed prior to examination, of any prospective juror.

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