RUSH O. NICHOLS, PETITIONER-APPELLANT,
v.
W. J. ESTELLE, JR., DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE
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The court held that a petitioner's failure to object to the admission of a prior conviction on the grounds of denial of counsel on appeal constitutes a waiver of that constitutional error for habeas corpus relief.
Petitioner was convicted in Texas and sentenced as a habitual offender, relying on a prior Oklahoma conviction. Petitioner challenged the enhancement,…
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GEE, Circuit Judge:
Petitioner was convicted in 1973 in Texas state court of robbery by assault1 and was sentenced to life imprisonment under the Texas habitual offender statute.2 He here alleges that the state improperly relied on a 1965 Oklahoma conviction to enhance his sentence for three reasons: (1) he was denied counsel on appeal from that conviction; (2) Texas law prohibits the use of a capital felony such as the Oklahoma conviction to enhance a noncapital felony such as the Texas conviction; and (3) the state failed to prove that petitioner was afforded an examining trial prior to the 1965 conviction. Because federal courts do not review a state’s failure to adhere to its own sentencing procedures,3 and because the Constitution does not require a state preliminary hearing,4 only the first contention presents a possible basis for habeas corpus relief.
But petitioner’s counsel failed to object to the admission of the Oklahoma conviction on the ground that counsel had not been provided on appeal.5 This failure worked a waiver of the constitutional error complained of here. Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Loud v. Estelle, 556 F. 2d 1326 (5th Cir. 1977). See also St. John v. Estelle, 544 F. 2d 894 (5th Cir. 1977).
The district court’s order denying relief is AFFIRMED.
. The conviction was affirmed on appeal. Nichols v. State, 511 S.W. 2d 269 (Tex.Cr.App. 1974). State habeas corpus relief was denied without written opinion.
. Tex.Penal Code Ann. § 12.42 (1974).
. Willeford v. Estelle, 538 F. 2d 1194 (5th Cir. 1976).
. Harris v. Estelle, 487 F. 2d 1293 (5th Cir. 1974).
. A general objection on other grounds was made and overruled.
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Citator
Cited By
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Spinkellink v. Louie L. Wainwright, 578 F.2d 582 (5th Cir. 1978)
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Branan v. Booth, 861 F.2d 1507 (11th Cir. 1988)
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Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wainwright v. Sykes, 433 U.S. 72 (U.S. 1977)
- Willeford v. Estelle, 538 F.2d 1194 (5th Cir. 1976)
- Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974)
- ST. John v. Estelle, 544 F.2d 894 (5th Cir. 1977)
- Clennon Loud v. Estelle, 556 F.2d 1326 (5th Cir. 1977)