482 F2d 935 Times v. L Wainwright

482 F.2d 935

James Andrew TIMES, Petitioner-Appellant,
Louie L. WAINWRIGHT, Director, Division of Corrections,
State of Florida, Respondent-Appellee.

No. 73-1761 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Aug. 3, 1973.

James Andrew Times, pro se.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., William W. Herring, West Palm Beach, Fla., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.



This is an appeal from the dismissal of Appellant's petition for a writ of habeas corpus concerning his conviction for second degree murder in a Florida state court. We are in agreement with the District Judge that Appellant's challenge to the prosecutor's question regarding Appellant's conviction for aggravated assault does not raise an issue cognizable in this federal habeas corpus proceeding. See 28 U.S. C.A. Sec. 2241. We also agree that the prosecutor's question to Appellant during cross-examination concerning Appellant's refusal to answer questions posed by a detective was an isolated remark cured by the trial Judge and constituted harmless constitutional error in view of the overwhelming evidence of guilt presented. See Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705.


We finally note that Appellant's claim that he was deprived of his rights under the Sixth and Fourteenth Amendments since he was not offered the benefit of or represented by counsel during his 1958 trial for aggravated assault which was mentioned before the jury during the course of his recent trial also presents an instance of harmless constitutional error.


The order dismissing the petition for the writ of habeas corpus is affirmed.




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