Rush O. Nichols, Petitioner-appellant, v. W. J. Estelle, Jr., Director, Texas Department Ofcorrections, Respondent- Appellee, 556 F.2d 1330 (5th Cir. 1977)

Petitioner was convicted in 1973 in Texas state court of robbery by assault¹  and was sentenced to life imprisonment under the Texas habitual offender statute.²  He here alleges that the state improperly relied on a 1965 Oklahoma conviction to enhance his sentence for three reasons: (1) he was denied counsel on appeal from that conviction; (2) Texas law prohibits the use of a capital felony such as the Oklahoma conviction to enhance a noncapital felony such as the Texas conviction; and (3) the state failed to prove that petitioner was afforded an examining trial prior to the 1965 conviction. Because federal courts do not review a state's failure to adhere to its own sentencing procedures,³  and because the Constitution does not require a state preliminary hearing,⁴  only the first contention presents a possible basis for habeas corpus relief.

But petitioner's counsel failed to object to the admission of the Oklahoma conviction on the ground that counsel had not been provided on appeal.⁵  This failure worked a waiver of the constitutional error complained of here. Wainwright v. Sykes, --- U.S. ----, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Loud v. Estelle, 556 F.2d 1326 (5th Cir. 1977). See also St. John v. Estelle, 544 F.2d 894 (5th Cir. 1977).

The district court's order denying relief is AFFIRMED.