Leavy Cowens v. Louie L. Wainwright, Director, Division of Corrections, State of Florida

373 F.2d 34

Leavy COWENS, Appellant,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee.

No. 24025.

United States Court of Appeals Fifth Circuit.

January 24, 1967.

Certiorari Denied May 15, 1967.

See 87 S.Ct. 1705.

Leavy Cowens, pro se.

Earl Faircloth, Atty. Gen., of Florida, Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for appellee.

Before TUTTLE, Chief Judge, BELL and GOLDBERG, Circuit Judges.

PER CURIAM:

1

Appellant, represented by counsel of his own selection, was convicted of robbery by a jury in the Florida State courts. His claim by way of a petition for habeas corpus is that his lawyer failed to call six witnesses who would have testified to his innocence. He contends that counsel was thus ineffective to the extent of amounting to denial of counsel within the meaning of the Sixth Amendment. He also claims that he was unlawfully arrested, had no counsel at the preliminary hearing, was charged by information rather than indictment, and that the public defender who represented him in a state court habeas corpus proceeding was incompetent.

2

With respect to the question of whether his lawyer should have called the particular witnesses, appellant does not allege that they were actually alibi witnesses. In fact he does not name the witnesses. Moreover, there is nothing to indicate that the failure to use such witnesses was anything more than trial strategy. This falls short of stating a claim of denial of counsel. Cf. Williams v. Beto, 5 Cir., 1965, 354 F.2d 698; Pineda v. Bailey, 5 Cir., 1965, 340 F.2d 162; and MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592.

3

Appellant's other grounds have also been considered. They are without merit.

4

Affirmed.