Opinion
Rogers Merritt, in pro. per.
Herbert P. Benn, Asst. Atty. Gen., Tallahassee, Fla., for the State of Florida.
ORDER
FULTON, Chief Judge.
This cause came on before the Court upon Motion for Rehearing on the denial of the petition for writ of habeas corpus. Said petition, as amended, urged the following grounds to support the claim that petitioner's detention at the Glades Detentional Institute is unlawful:
1. Deprivation of a preliminary examination under § 901.23, Florida Statutes, F.S.A.
2. Illegal search and seizure.
3. Illegal arrest without a warrant.
On February 4, 1965, this Court denied the amended petition on the ground that deprivation of a preliminary hearing was not a prerequisite to the finding of an indictment or the filing of an information.
Pursuant to mandate, that Order was vacated and petitioner's claim of illegal search and seizure was considered. On June 29, 1966, this Court denied the amended petition based upon the fact that the subject matter of the alleged search and seizure was not introduced as evidence against petitioner at his trial, without ruling on whether there was in fact an illegal search and seizure.
The third ground for the petition, illegal arrest without a warrant, remains to be considered.
A naked allegation of illegal arrest is not grounds for the discharge of a state prisoner under 28 U.S.C. § 2254 unless petitioner further claims that such arrest in some way deprived him of a fair trial. Fernandez v. Klinger, 346 F.2d 210 (C.A. 9, 1965); Green v. Yeager, 223 F.Supp. 544 (D.C.N.J., 1963); aff'd, 332 F.2d 794 (C.A. 3, 1964); Madison v. Tahash, 249 F.Supp. 600 (D.C.Minn., 1966); Nelson v. Hancock, 210 F.Supp. 60 (D.C.N.H., 1962).
The petition, as amended, and the motion for rehearing disclose only the allegation that an illegal search and seizure followed the arrest without a warrant. Since the subject matter of the claimed illegal search and seizure was not used as evidence against petitioner at his trial, the arrest did not deprive him of a fair trial. Thereupon, it is,
Ordered and adjudged that the Motion for Rehearing on the denial of the petition for writ of habeas corpus be and the same is hereby denied.