Burl Eugene Lyles, Appellant, v. Dr. George J. Beto, Director, Texas Department of Corrections, et al., Appellees, 363 F.2d 503 (5th Cir. 1966)

An earlier judgment of this court affirming the denial by the trial court of a petition for habeas corpus was vacated by the United States Supreme Court and the case was "remanded to the United States Court of Appeals [for the Fifth Circuit] for reconsideration in light of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 246." Lyles v. Beto, 379 U.S. 648, 85 S. Ct. 613, 13 L. Ed. 2d 552.

We have reconsidered this case in light of Massiah and in light of Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653. We conclude that the opinion of the Supreme Court in Johnson and Cassidy, Petitioners, v. State of New Jersey, 1966, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882, rules this case. The trial in this case began long before June 13, 1966, the cut off date now announced by the Supreme Court for the application of the requirement of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.

The only substantial issue left in this case being the question whether the eliciting of a voluntary confession from the appellant while in custody in the police station at a time when he had neither counsel nor had been advised of his right to counsel deprived him of his constitutional rights under the Sixth Amendment, that issue has now been foreclosed.

The judgment of the trial court is affirmed.