Stewart v. Cain ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31121
Summary Calendar
CLYDE STEWART,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1231-H
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July 1, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Clyde Stewart, Louisiana prisoner # 92865, challenges the
district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus
petition. He contends that he was denied his right to counsel at
a physical lineup conducted after he was arrested and appointed
counsel at an initial court appearance but prior to the issuance
of the indictment.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-31121
-2-
Stewart’s claim that he was entitled to counsel under
Louisiana law, pursuant to State v. Hattaway, 621 So. 2d 796 (La.
1993) and La. Code Crim. P. Ann. art. 230.1 (West 1999), is not
cognizable in a § 2254 petition. See Bridge v. Lynaugh, 838 F.2d
770, 772 (5th Cir. 1988)(errors of state law and procedure are
not cognizable in federal habeas proceedings unless they result
in a violation of a federal constitutional right). Stewart does
not have a federal constitutional claim because his initial
appearance was not a preliminary hearing signaling the onset of
adversarial judicial proceedings and triggering his Sixth
Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682,
688-89 (1972); Frisco v. Blackburn, 782 F.2d 1353, 1355 (5th Cir.
1986); Daigre v. Maggio, 705 F.2d 786 (5th Cir. 1983); La. Code
Crim. P. arts. 230.1, 291 et. seq. The district court’s judgment
denying habeas relief is therefore AFFIRMED.