United States Ex Rel. Stephen Fink v. Louis Heyd, Criminal Sheriff of the Parish of Orleans

408 F.2d 7

UNITED STATES ex rel. Stephen FINK, Petitioner-Appellant,
v.
Louis HEYD, Criminal Sheriff of the Parish of Orleans,
Respondent-Appellee.

No. 26769.

United States Court of Appeals Fifth Circuit.

March 7, 1969.

Ross T. Scaccia, New Orleans, La., for appellant.

Numa V. Bertel, Jr., Asst. Dist. Atty., Jim Garrison, Dist. Atty., for Parish of Orleans, New Orleans, La., for appellee.

Before THORNBERRY and DYER, Circuit Judges, and FISHER, Cistrict Judge.

PER CURIAM:

1

Petitioner, who is in the process of appealing his state conviction for a narcotics violation, seeks a declaration from a federal court sitting in habeas corpus that a state statute which operates to deny him bail pending appeal is unconstitutional. He was sentenced to five years' imprisonment by the state trial court and is therefore ineligible for bail pending appeal by operation of article 314 of the Louisiana Code of Criminal Procedure and article I, section 12 of the Louisiana Constitution which prohibit a defendant who is sentenced to a term of five years or more from making an appeal bond.

2

This Court has held that inasmuch as there is no absolute right to bail pending appeal it will not interfere with a state statute providing for bail under certain circumstances unless the legislation violates fundamental constitutional principles. Sellers v. Georgia, 5th Cir. 1967, 374 F.2d 84. In this case, we agree with the court below, 287 F. Supp. 716 that a determination by the state legislature that any defendant who has been sentenced to five years' imprisonment or more is such a poor bail risk that he should be prohibited from making an appeal bond is not so arbitrary and unreasonable as to contravene the fourteenth amendment. Accordingly, the judgment is affirmed.