BILL R. MARLIN, PETITIONER-APPELLANT,
v.
STATE OF FLORIDA, RESPONDENT-APPELLEE
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The court held that a federal habeas petitioner is precluded from attacking jury composition due to failure to timely object, construing such failure as a waiver.
Petitioner sought federal habeas corpus relief after his state conviction was affirmed. He raised claims regarding prosecutorial remarks and illegal j…
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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 216, 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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Cited By (12 total)
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Guss Maggitt v. Wyrick, 533 F.2d 383 (8th Cir. 1976)
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Huffman v. Louie L. Wainwright, 651 F.2d 347 (5th Cir. 1981)
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Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983)
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Davis v. United States, 411 U.S. 233 (U.S. 1973)
- State v. Silva, 259 So. 2d 153 (Fla. 1972)
- Rivera v. Louie L. Wainwright, 488 F.2d 275 (5th Cir. 1974)
- Fate Bryant v. Caldwell, 484 F.2d 65 (5th Cir. 1973)
- Buchannon v. Louie L. Wainwright, 474 F.2d 1006 (5th Cir. 1973)
- Marlin v. State, 268 So. 2d 548 (Fla. 3d DCA 1972)
- Saitta v. State, 268 So. 2d 548 (Fla. 2d DCA 1972)