Paul Harry Howard v. Ross Maggio, Jr., Acting Warden, Louisiana State Penitentiary, 540 F.2d 1280 (5th Cir. 1976). · Go Syfert
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Paul Harry Howard v. Ross Maggio, Jr., Acting Warden, Louisiana State Penitentiary, 540 F.2d 1280 (5th Cir. 1976). Cases Citing This Book View Copy Cite
19 citation events across 12 distinct courts.
Strongest positive: State v. Patterson (conn, 1996-04-02)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Patterson
Conn. · 1996 · confidence medium
See, e.g., Katz v. King, 627 F.2d 568, 576 (1st Cir. 1980) (failure to use PSI is not of constitutional dimensions); Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976) (PSI is aid to counsel, not right of accused); Segura v. Patterson, 402 F.2d 249, 252 (10th Cir. 1968), rev’d on other grounds, 403 U.S. 946 , 91 S. Ct. 2280 , 29 L.
discussed Cited as authority (rule) Figueroa v. State
Tex. App. · 1987 · confidence medium
In Howard v. Maggio, the Fifth Circuit found no merit to defendant’s contention that silence together with crying during interrogation compelled a finding that he wished to terminate the interview. 540 F.2d 1280, 1281 (5th Cir.1976).
cited Cited as authority (rule) Blake v. Zant
S.D. Ga. · 1981 · confidence medium
LaVallee v. Delle Rose, 410 U.S. 690 , 93 S.Ct. 1203 , 35 L.Ed.2d 637 (1972); Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980).
cited Cited as authority (rule) Katz v. King
1st Cir. · 1980 · confidence medium
Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976), and its use is a matter of discretion for the judge.
cited Cited as authority (rule) Katz v. King
1st Cir. · 1980 · confidence medium
Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976), and its use is a matter of discretion for the judge.
cited Cited as authority (rule) United States v. Lania
cma · 1980 · confidence medium
Still another appellate court has emphasized, “Deterrence as well as reform and rehabilitation are legitimate objects of a sentence.” Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976).
discussed Cited as authority (rule) Lee v. Pennsylvania Board of Probation & Parole
E.D. Pa. · 1979 · confidence medium
Fie also claimed the detainer was a form of “cruel and unusual punishment prohibited by the Eighth Amendment.” As to this contention, we note that “[¡Imprisonment itself is clearly not cruel and unusual punishment.” Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976).
discussed Cited "see" Sawyers v. State
Tex. Crim. App. · 1986 · signal: see · confidence high
See Taylor v. Riddle, 563 F.2d 133 (4th Cir.1977), cert. denied, 434 U.S. 1020 , 98 S.Ct. 744 , 54 L.Ed.2d 768 (1978) (where the defendant contended that his silence, after being given his Miranda warnings, signified his election to remain silent), and Howard v. Maggio, 540 F.2d 1280 (5th Cir.1976) (where the defendant contended his silence and crying during the interrogation compelled a finding that he wished to terminate the questioning). *36 Our review of Texas case law indicates that this exact question has never been considered before.
cited Cited "see" Ortiz v. Duckworth
N.D. Ind. · 1980 · signal: see · confidence high
See Howard v. Maggio, 540 F.2d 1280 (5th Cir. 1976), and Velleca v. Superintendent M.C.I., Walpole, 523 F.2d 1040 (1st Cir. 1975).
Retrieving the full opinion text from the archive…
Paul Harry HOWARD, Petitioner-Appellant,
v.
Ross MAGGIO, Jr., Acting Warden, Louisiana State Penitentiary, Respondent-Appellee
75-4222.
Court of Appeals for the Fifth Circuit.
Oct 22, 1976.
540 F.2d 1280
Patrick C. McGinity, New Orleans, La. (court appointed), for petitioner-appellant., Ralph Roy, Asst. Dist. Atty., 19th Judicial Dist., Parish of Eastern Baton Rouge, Ossie B. Brown, Dist. Atty., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.
Ainsworth, Roney, Allgood.
Cited by 18 opinions  |  Published
PER CURIAM:

The district court, relying on the State Court record and without an evidentiary hearing, denied Howard, a Louisiana state prisoner, habeas relief. We affirm.

Howard was sentenced to ninety-nine years at hard labor after conviction by a jury for armed robbery. The Louisiana Supreme Court affirmed, State v. Howard, 262 La. 270, 263 So.2d 32. Howard argues four constitutional violations. (1) The prosecutor, in his summation, commented on Howard’s failure to testify in his own defense. (2) His confession, which was admitted into evidence, was the product of coercion and duress. (3) The penalty provision of Louisiana Revised Statutes 14:64, under which Howard was sentenced, deprives him of equal protection of the laws and constitutes cruel and unusual punishment. (4) The state trial court erred in sentencing Howard without a presentence investigation.

Howard’s contention that there was prejudicial prosecution argument is without merit. The trial judge found that when the prosecutor stated that “he hasn’t seen fit to tell us why he shot Mrs. Stablier,” the prosecutor was simply referring to a lengthy tape-recorded confession in which Howard admitted the crime but gave no explanation for shooting the victim of the robbery. This tape, which counsel pointed to during summation, was sitting on the rail of the jury box when the comment was made. The state record supports the trial judge’s analysis of this incident.

With regard to the admission of a lengthy tape-recorded interrogation which contained inculpatory statements, Howard was adequately informed of his constitutional rights and signed a waiver form. We find without merit his contention that his silence and crying during the continued interrogation compelled a finding that he wished to terminate the investigation and did not wish to answer any further questions.

The penalty provision of Louisiana Revised Statutes 14:64 requires that the[*1282] sentence for armed robbery must be imposed without benefit of parole, probation or suspension of sentence. Howard argues that such a sentence denies him equal protection because the object of a criminal sentence is reform and rehabilitation of the criminal. Imprisonment itself is clearly not cruel and unusual punishment. Moreover all those convicted of armed robbery are treated alike. Deterrence as well as reform and rehabilitation are legitimate objects of a sentence. The record discloses a senseless and unprovoked killing by gunshot during the armed robbery.

Finally there is no requirement that a presentence investigation be conducted. Such an investigation is an aid to the court and not a right of the accused.

The state court considered arid fairly disposed of these issues. Its determination is presumed to be correct and the burden in a federal habeas corpus proceeding is on the petitioner to establish that the state court’s findings were erroneous. LaVallee v. Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). Howard failed to carry his burden.

AFFIRMED.