Irvin v. Chapman Petition for Writ of Certiorari to the Supreme Court of Florida

    IN' T H E

£>uprm? (Urtart nf %  Ituitrii l^tatea

October Term, 1954 
No,

W alter L . I rvin ,

v.
Petitioner,

L. F . C h a pm a n , Superintendent of Raiford State 
Penitentiary, Raiford, Florida,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF FLORIDA

T hurgood M arshall 
J ack Greenberg

107 West 43rd Street 
New York 36, New York

P aul C. P erk in s

647 West South Street 
Orlando, Florida

F rank  D. R eeves

473 Florida Avenue, N. W. 
Washington 1, D, C.

Attorneys for Petitioner

Supreme Printing Co., I nc., 114 Worth Street, N. Y. 13, BEekman 3 - 2320



TABLE OF CONTENTS

PAGE

Citations to Opinions Below ....................................  1
Jurisdiction ......................................   1
Question Presented ...................................................  2
Statement of the Case .............................................. 2
Reasons for Allowance of the W r i t ...........................  6

I. The allegations in a petition for writ of habeas 
corpus of the prosecution’s knowing use of fab­
ricated evidence and perjured testimony, not 
controverted by respondent, require granting 
of the writ. The decision of the Supreme Court 
of Florida below to the contrary is probably 
not in accord with the applicable decisions of 
this Court ..........................................................  6

II. The allegations of a petition for writ of habeas 
corpus that in a state criminal prosecution evi­
dence beneficial to defendant was suppressed, 
require the granting of the writ. This question 
has not previously been decided by this Court 9

III. The conclusion by the Court below that no fed­
eral question is involved in the matter raised 
by the petition for writ of habeas corpus is 
probably in conflict with decisions by this Court 12



11

Table of Cases
PAGE

Brown v. Allen, 344 U. S. 443 ................................... 13
Brown v. Western Railway Co., 338 U. S. 294 .........  12
Cassell v. Texas, 339 IT. S. 282 ................................. 13
Frank v. Mangum, 237 U. S. 309 ....... ..................... 12
Hysler v. Florida, 314 U. S. 4 11 ...............................  7, 8
Irvin v. Florida, 346 U. S. 927, reh. den. 347 U. S. 914 3
Irvin v. State, 66 So. 2d 288 ......................................  3
James v. U. S., 175 F. 2d 769 ....................................  7
Malinsky v. New York, 324 U. S. 401 ........................ 13
Moore v. Dempsey, 261 U. S. 8 6 ...............................  6
Mooney v. Hololian, 294 U. S. 103 ..........................7,11,13
Pyle v. Kansas, 317 U. S. 213 ................................7,11,13
Radio Station WOW, Inc. v. Johnson, 326 U. S. 120 12
Rochin v. California, 342 U. S. 165...........................  13
Shepherd v. Florida, 341 IT. S. 5 0 ................  3
Shepherd v. State, 46 So. 2d 880 ...............................  3
United States v. Baldi, 195 F. 2d 815, cert. den. 345

U. S. 904 .................................................................  11
United States v. Berger, 295 U. S. 7 8 ..................... 11
United States v. Rutkin, 212 F. 2d 641...................  11
United States v. Ragen, 86 F. Supp. 382 .................... 11
White v. Ragen, 324 U. S. 760 ............................. . 7,11

Constitution Cited

United States Constitution, 14th Amendment.........  7,11

Text Cited
Robertson and Kirkham, Jurisdiction of Supreme 

Court of the United States, §96 ...........................  12



IN  T H E

Supreme (Burnt nf %  luiteii States
O ctober Term, 1954  

No.

—_----------- .—o------------ _ _
W alter L. I rv in ,

Petitioner,
v.

L. F. C h a pm a n , Superintendent of Raiford State 
Penitentiary, Raiford, Florida,

Respondent.
---------- —----- o------------------- -

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF FLORIDA

To the Honorable, the Chief Justice of the United 
States and the Associate Justices of the 
Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Florida entered in 
the above-entitled case on November 5, 1954.

Citations to Opinions Below

The opinion of the Supreme Court of Florida is unre­
ported and is printed in the Appendix hereto, pages 14-17.

Jurisdiction

The judgment of the Supreme Court of Florida, deny­
ing an original petition herein for writ of habeas corpus, 
was entered on November 5, 1954 (Appendix, p. 14). The



2

court below simultaneously denied an alternative petition 
for a stay of execution pending application for a writ of 
certiorari to this Court (Appendix, p. 17). Petitioner, on 
November 5, 1954, applied to this Court for a stay of 
execution pending the filing and disposition of a petition 
for writ of certiorari. On November 6, 1954, this Court 
entered an order staying petitioner’s execution pending 
the filing and disposition of a petition for certiorari to 
review the judgment of the court below, provided said 
petition is filed on or before November 20, 1954.

Question Presented

Whether, upon original petition for habeas corpus in 
the Supreme Court of Florida—alleging that petitioner’s 
conviction and death sentence for rape are based upon a 
trial, conducted in an atmosphere of public and official hos­
tility, in which the state used perjured and fabricated evi­
dence and suppressed other evidence material to peti­
tioner ’s defense, which allegations are not controverted by 
the state—the court below erred in denying the petition 
upon the grounds (1) that its previous affirmance of the 
conviction upon appeal forecloses further adjudication of 
the issues raised and (2) the petition raises no federal ques­
tion.

Statement of the Case 1

Petitioner and a co-defendant, Samuel Shepherd, were 
convicted of the crime of rape and sentenced to death in

1 The transcript of record herein, pursuant to Rule 21, para­
graph consists of the Petition for a Writ of Habeas Corpus and 
Exhibit A attached thereto; the Alternative Petition for Stay of 
Execution; and the Opinion of the Supreme Court of Florida. The 
Petition and the Opinion are reprinted in the Appendix hereto, 
infra, pp. 1 and 14.



3

the Circuit Court of the Fifth Judicial Circuit of the State 
of Florida, in and for Lake County, on September 8, 1949. 
The Supreme Court of Florida unanimously affirmed. Shep­
herd v. State, 46 So. 2d 880. This Court, in a per curiam 
opinion, unanimously reversed. Shepherd v. Florida, 341 
U. S. 50.2

Petitioner and his co-defendant again were indicted for 
rape on July 6, 1951, and, after the co-defendant was killed 
and petitioner seriously wounded under circumstances set 
forth in petitioner’s affidavit attached to his Petition for 
Habeas Corpus herein (Appendix, pp. 12-13), petitioner was 
tried in the Circuit Court of the Fifth Judicial Circuit of 
the State of Florida, in and for Marion County, before a 
jury which returned a verdict of guilty, without recom­
mendation of mercy, on February 14, 1952. On the same 
day the court sentenced petitioner to die by electrocution. 
A motion for new trial was denied on March 11, 1952. On 
appeal, the Supreme Court of Florida affirmed the con­
viction on June 23,1953. Irvin v. State, 66 So. 2d 288. This 
Court denied a petition for certiorari on January 4, 1954. 
Irvin v. Florida, 346 U. S. 927, reh. den. 347 IT. S. 914.

By an original action in the Supreme Court of Florida 
petitioner sought a writ of habeas corpus against the 
superintendent of the state prison, his custodian, alleging 
that his detention and restraint were unlawful in that the 
judgment and sentence under pretext of which petitioner 
was being held were “ illegal and void as contrary to the 
Fourteenth Amendment to the Constitution of the United 
States forbidding any state to deprive any person of life 
[or liberty] without due process of law” (Appendix,
pp. 1-2).

2 The late Mr. Justice Jackson, concurring in the result, in an 
opinion in which Mr. Justice Frankfurter joined, stated that “The 
case [in consideration of the conditions under which the trial took 
place and accompanying events] presents one of the best examples 
of one of the worst menaces to American justice.” 341 U. S. 50, 55.



4

The original petition for habeas corpus in the court 
below recited the proceedings and events since his arrest, 
and alleged in support of his contention that his convic­
tion and sentence were “ illegal, void and in violation of 
the Fourteenth Amendment of the United States Consti­
tution . . the following reasons: (1) that his trial was 
conducted in an atmosphere of severe hostility and the re­
fusal of the trial court to grant petitioner’s motion for a 
change of venue denied him the possibility of a fair trial 
(Appendix, p. 4); (2) that the trial court’s refusal to 
allow petitioner to introduce, at the hearing on his motion 
for change of venue, evidence of the results of a public 
opinion survey made by the Elmo Roper Agency pre­
cluded petitioner from introducing substantial proof of 
the extent of the hostility pervading Marion County and 
the impossibility of petitioner’s obtaining a fair trial 
therein (Appendix, p. 6); (3) that petitioner was convicted 
by the use of evidence obtained by an unlawful search and 
seizure (Appendix, p. 7); (4) that petitioner was convicted 
by the use of evidence which was patently false and know­
ingly contrived by state officials (Appendix, p. 7); and (5) 
that the totality of errors committed at petitioner’s trial 
including: (a) acts of prejudicial misconduct on the part of 
the prosecutor, such as invidious references to petitioner’s 
race (Appendix, pp. 7-8); erroneous, prejudicial and highly 
unfair assertions about defense counsel (Appendix, p. 8); 
assertion of the prosecutor’s personal belief in petitioner’s 
guilt and references to his [the prosecutor’s] ill health 
(Appendix, p. 8); (b) the State’s constructive suppression 
of evidence by refusing to obtain accurate scientific an­
alysis, available to the State, of raw physical evidence 
which was found (Appendix, pp. 8-9). The petition further 
alleged that the sheriff’s deliberate killing of petitioner’s 
co-defendant, Shepherd, resulted in the suppression of evi­
dence which Shepherd could have given on behalf of peti­
tioner and which would have proved petitioner’s innocence 
of the crime with which he was charged (Appendix, p. 9);



5

and that the state constructively suppressed evidence by 
refusing to have the medical doctor who had examined the 
alleged rape victim early the same morning the alleged 
rape was supposed to have occurred, testify for the reason 
that said doctor, upon the basis of petitioner’s information 
and belief, would have testified that the prosecutrix had 
not been raped (Appendix, pp. 9-10).

The respondent filed no pleading in the court below, and 
that court, upon examination of the petition unanimously 
denied the petition upon the grounds (1) that, “ with the 
exception of certain matters hereinafter noted, the peti­
tioner has alleged no facts in his petition that have not 
heretofore been set at rest by this Court on an appeal from 
the judgment and sentence entered in the original cause 
* * * Therefore, such matter is not now open for adjudica­
tion” (Appendix, pp. 14-15); (2) that, having failed to 
offer in evidence at petitioner’s second trial the transcribed 
testimony by Shepherd at the first trial, as provided under 
Section 920.09, Florida Statutes 1951, “ petitioner is fore­
closed from now raising the question as to what testimony 
Shepherd might have given at the second trial had he lived 
and elected to take the stand and give testimony in behalf 
of the petitioner” (Appendix, p. 16); and (3) the petition 
showing only that “ petitioner believes that if the doctor 
had been called he might have given testimony favorable 
to his cause * * * it is entirely immaterial that the state 
did not call the medical doctor as a witness, because the 
defendant, petitioner in this proceeding, was free to do so. 
Furthermore * * * [the petitioner having asserted no rea­
son for] his failure to raise on the prior appeal the ground 
now asserted for the first time in his petition for habeas 
corpus * * * it must be held, under the decisions, that he 
has waived or forfeited the right to raise the issue by his 
failure to make timely assertion thereof” (Appendix, pp. 
16-17).

In denying petitioner’s alternative application for a 
stay of execution to enable petitioner to seek a review of



6

its judgment by certiorari, the court below said: “ We find 
no federal question involved in this controversy, and con­
sequently the application for stay should be denied” (Ap­
pendix, p. 17).

Reasons for Allowance of the Writ

The respondent filed no pleading in response to the peti­
tion for writ of habeas corpus in the court below. Thus, 
the allegations of the petition stand uncontroverted. The 
Supreme Court of Florida appears to have treated the 
matter as if on motion to dismiss or demurrer. Conse­
quently, the allegations of the petition must be accepted as 
true. Moore v. Dempsey, 261 U. S. 86, 87.

I

The allegations in a petition for writ of habeas 
corpus of the prosecution’s knowing use of fabricated 
evidence and perjured testimony, not controverted by 
respondent, require granting of the writ. The decision 
of the Supreme Court of Florida below to the con­
trary is probably not in accord with the applicable deci­
sions of this Court.

Petitioner alleged in the court below that his conviction 
was based upon evidence which was patently false and 
knowingly contrived by state officials (Appendix, p. 7). 
These allegations were not controverted in the court below.

The footprint casts made by Deputy Sheriff Yates were 
alleged to be patently false because, among other things, it 
is impossible that the original footprints, from which the 
casts were made, were made by a shoe with a foot in it. 
The sole of every shoe when worn on the foot makes a con­
cave impression on the ground. The footprints which were 
the subject of this testimony were convex, and thus neces­



7

sarily false and contrived. By knowingly using such evi­
dence petitioner alleged that the state deprived him of a 
fair trial and thus denied him due process of law (Appen­
dix, p. 7).

Knowing use by the prosecutor of perjured testimony in 
a state criminal prosecution was first held to violate that 
due process of law required by the 14th Amendment in 
Mooney v. Holohan, 294 U. S. 103. There the court said:1

That requirement [of due process] . . .  cannot be 
deemed to be satisfied by mere notice and hearing 
if a State has contrived a conviction through pretense 
of a trial which in truth is but used as a means of 
depriving a defendant of liberty through a deliberate 
deception of court and jury by the presentation of 
testimony known to be perjured. Such a contrivance 
by a State to procure the conviction and imprison­
ment of a defendant is as inconsistent with the rudi­
mentary demands of justice as the obtaining of a 
like result by intimidation.

This Court has often reaffirmed this proposition. Pyle v. 
Kansas, 317 U. S. 213, 215-216; White v. Ragen, 324 IT. g. 
760, 764; see also Hysler v. Florida, 314 U. S. 411, 413.

In Pyle v. Kansas, supra, the specific allegations of 
knowing use of perjured testimony were contained in ex­
hibits that were not sworn to. This Court, pointing out 
that the allegations were “ nowhere . . . refuted or
denied . . .” ,1 2 remanded the case for hearing. In James 
v. U. 8., 175 F. 2d 769, it was held that mere allegations 
of the knowing use of perjured testimony entitled a person 
to a hearing. In the instant case, the pertinent allegations 
were contained in the sworn petition for writ of habeas

1 294 U. S. 103, 112.
2 317 U. S. 213, 216.



8

corpus in the court below and, as previously indicated, they 
were not controverted by the respondent. The court below, 
apparently relying upon the fact that this issue was raised 
upon the trial of petitioner and apparently was submitted 
to the trial jury and resolved by its general verdict of 
guilty, contended that its affirmance of that verdict pre­
cluded further adjudication of the issue upon the petition 
below.

In Hysler v. Florida, supra, this Court stated that a 
petition charging knowing use of perjured testimony 
might be denied by a state court pursuant to its rule of 
law requiring that it must look at the reasonableness of 
the allegations, the possibility of their truth, and their 
substantiality. Accordingly, this Court found in the 
Hysler case that there was “ no doubt that the finding of 
insubstantiality was justified.’’ 3 However, the opinion 
below in the instant case does not indicate that the court 
reviewed the evidence or concluded that the uncontroverted 
allegations in the petition for habeas corpus were insub­
stantial or beyond belief. As previously noted these allega­
tions were sworn to and in light of their physical basis 
obviously were substantial.

The dissenting justices in the Hysler case noted that:
It must also be borne in mind that if the proof 
accompanying the petition for leave to apply for a 
writ of error coram nobis had to be so full as to 
establish conclusively the truth of the allegations, 
petitioners who required the amplifying or corrobo­
rative evidence of inaccessible or unwilling wit­
nesses would be effectively barred from access to 
this remedy, for they would never have the oppor­
tunity to utilize the compulsory process which a 
trial of the facts would afford.4

3 315 U. S. 411, 422.

4 315 U. S. 411, 426.



9

In the instant case, the evidence necessary to support peti­
tioner’s allegations, obviously would not be available ex­
cept upon a hearing of the facts by the court below. Having 
denied petitioner the opportunity to compel the production 
of such evidence in the court below, the court below would 
be unable to ascertain by a mere review of the conviction 
in the trial court, the weight and sufficiency accorded such 
evidence before the jury, and it is submitted that such 
review cannot foreclose the petitioner’s right to have 
this issue adjudicated upon his petition for habeas corpus.

I I .

The allegations of a petition for writ of habeas 
corpus that in a state criminal prosecution evidence 
beneficial to defendant was suppressed, require the 
granting of the writ. This question has not previously 
been decided by this Court.

The uncontroverted allegations of the petition below set 
forth (a) that the State engaged in a constructive suppres­
sion of evidence by refusing to obtain and introduce avail­
able scientific analysis of pertinent raw physical evidence 
\_e.g., a smear upon petitioner’s trousers, impliedly semen; 
“ lint”  found near the scene of the alleged crime which, 
according to testimony, was similar to that found in co­
defendant Shepherd’s automobile; plaster casts of tire 
tracks] (Appendix, pp. 8-9); (b) that the State engaged in 
constructive suppression of evidence by refusing to have 
the medical doctor testify who had examined the prose­
cutrix early the same morning the alleged rape was sup­
posed to have occurred, and petitioner, based upon infor­
mation and belief, believes that the state suppressed the 
testimony of the medical doctor because said medical doc­
tor would have testified that the prosecutrix had not been 
raped (Appendix, pp. 9-10); and (c) that Sheriff McCall’s



10

deliberate killing of co-defendant Samuel Shepherd re­
sulted in the suppression of evidence which Shepherd 
could have given on behalf of the petitioner and which 
would have proved petitioner’s innocence of the crime 
with which he was charged (Appendix, p. 9).

The court below ignored, in its opinion, the allegation 
concerning constructive suppression of scientific analysis 
pertaining to the physical evidence. It disposed of the 
allegations with reference to suppression of the doctor’s 
testimony by shifting the responsibility to the petitioner 
(Appendix, pp. 16-17).

As to the constructive suppression of evidence in the 
form of testimony which petitioner expected to offer by 
Samuel Shepherd, who was killed by the Sheriff before 
trial, the court below says:

As to this point, the records of this Court, of which 
we take judicial notice, show that at the first trial of 
this cause the co-defendant Shepherd was sworn and 
testified in full detail as to the activities in which he 
and the petitioner were engaged. Sec. 920.09, Flor­
ida Statutes 1951, provides that when a new trial 
is granted in a criminal case such new trial shall pro­
ceed in all respects as if no former trial had been had; 
except that if witnesses used on the first trial are 
dead at the time of the second trial “ The evidence 
of such witnesses on former trial may be presented 
as the same was taken by the court reporter.”

The records of this Court show also that on the 
second trial of this cause in the court below, no effort 
was ever made by the petitioner to introduce into 
evidence a transcribed copy of the evidence given at 
the former trial by the decedent Shepherd. Having 
failed to introduce this evidence at the second trial, 
the petitioner is foreclosed from now raising the 
question as to what testimony Shepherd might have



11

given at the second trial had he lived and elected to 
take the stand and give testimony in behalf of the 
petitioner. State ex rel. Johnson v. Mayo (Fla.), 
69 So. 2d 307, certiorari denied 347 U. S. 992, 98 
L. Ed. 722, 74 S. Ct. 855.

It appears that this Court never has squarely held that 
suppression of evidence in a state criminal prosecution 
violates the Fourteenth Amendment. However, it would 
appear that the holdings in Mooney v. Holohan, Pyle v. 
Kansas, and White v. Hagen, supra, are sufficiently broad 
to support such proposition. Thus, in Pyle v. Kansas, the 
Court held merely that knowing use by the prosecution of 
perjured testimony plus deliberate suppression amounted 
to a denial of due process.1 Two United States Courts of 
Appeals and one federal district court have held sup­
pression of evidence by the prosecution in a state criminal 
trial amounts to a denial of due process of law.1 2

The conclusion by the court below that petitioner’s fail­
ure to avail himself of the statutory provisions allowing 
use of the previously transcribed testimony of a deceased 
witness forecloses his raising the point as a denial of due 
process in his petition for habeas corpus, blandly circum­
vents the allegation that the State itself, by its agent, 
Sheriff McCall, was responsible for the death and unavail­
ability of this witness.

1 See also United States v. Berger, 295 U. S. 78, to the effect that 
even the prosecuting attorney must make the vital facts of the case 
known.

2 United States v. Rutkin, 212 F. 2d 641; United States v. Baldi, 
195 F. 2d 815, cert. den. 345 U. S. 904; United States v. Ragen, 86 
F. Supp. 382.



12

The conclusion by the Court below that no federal 
question is involved in the matter raised by the petition 
for writ of habeas corpus is probably in conflict with 
decisions by this Court.

The court below, in denying petitioner’s application for 
a stay of execution pending an effort to obtain review on 
certiorari of its denial of the petition for habeas corpus, 
says: “ We find no federal question involved in this con­
troversy * * *” (Appendix, p. 17). But such a recital can­
not bind this Court. Broivn v. Western, Railway Co., 338 
II. S. 294, 296; Radio Station WOW, Inc. v. Johnson, 326 
U. S. 120, 129.1

In Frank v. Mangum, 237 U. S. 309, this Court said, at 
page 332:

Now the obligation resting upon us * * * to look 
through the form and into the very heart and sub­
stance of the matter, applies as well to the averments 
of the petition as to the proceedings which the peti­
tion attacks. We must regard not any single clause 
or paragraph, but the entire petition, and the exhibits 
that are made a part of it.

The proper inquiry then, it would appear, is whether 
the uncontroverted averments of the petition below and the 
other factual material before this Court demonstrate a 
denial of due process. To this end, even those issues which 
may have been previously adjudicated, or which may be 
procedurally foreclosed to petitioner, are entitled to con­
sideration in an evaluation of whether, upon the whole 
record, there was a denial of a fair trial.

I I I .

1 See also Robertson and Kirkham, Jurisdiction of Supreme Court 
of the United States, §96.



13

Consquently, when the court below refers to the matter 
as having been adjudicated on an earlier occasion, it says 
that when it affirms a jury’s finding of guilty—even though 
testimony perjured by the hand of the State has been intro­
duced at the trial and the State has suppressed evidence 
favorable to defendant—the proceedings are insulated by 
the general verdict against collateral attack.

But this Court has held otherwise. Mooney v. Holohan, 
supra; Pyle v. Kansas, supra; Rochin v. California, M2 
U. S. 165; Malinshy v. Neiv York, 324 U. S. 401; Cassell v. 
Texas, 339 U. S. 282; Brown v. Allen, 344 U. S. 443. Indeed 
in Brown v. Allen, this Court only recently went to great 
pains to examine whether the judgments under review con­
tained fatal constitutional flaws where such questions had 
been raised in the proceedings which led to the convictions.

Upon this Court’s per curiam reversal of petitioner’s 
first conviction and sentence herein, the late Mr. Justice 
Jackson, concurring in the result, in an opinion in which 
he was joined by Mr. Justice Frankfurter, wrote:2

But prejudicial influences outside the courtroom, 
becoming all too typical of a highly publicized trial, 
were brought to bear on this jury with such force 
that the conclusion is inescapable that these defend­
ants were prejudged as guilty and the trial was but 
a legal gesture to register a verdict already dictated 
by the press and the public opinion which it gen­
erated.

Among the “ prejudicial influences outside the courtroom”, 
discussed in the opinion, were statements attributed to 
Lake County Sheriff McCall who had the prisoners in cus­
tody; the inflammatory press reports concerning the crime 
and the case; and the atmosphere of hostility and potential

2 341 U. S. SO, 51.



14

violence which led the trial judge to take extraordinary 
precautions in preparation for and during the trial.3

The circumstances and events accompanying petitioner’s 
second trial strongly indicate the presence in Marion 
County, contiguous to Lake County, of similar, if not 
stronger, “ prejudicial influences” than those previously 
condemned.

The petition for habeas corpus alleged (Appendix, p. 6) 
and stands uncontroverted that the newspapers in Marion 
County, where petitioner’s second trial was held, reported 
the same passion-arousing events mentioned in Mr. Justice 
Jackson’s opinion, supra. In addition, the petition alleges 
that the local press reported, following this Court’s re­
versal of the previous conviction, that the Sheriff of Lake 
County publicly said this Court had bowed “ to subversive 
influences” (Appendix, p. 5); that the State’s Attorney, sev­
eral months prior to the second trial, “ charged publicly that 
petitioner’s counsel of choice represented an organization 
which had ‘been responsible for vicious, slanderous and libel­
ous matter filed in this Court * * *’ ” (Appendix, p. 5); that 
Sheriff McCall and one of his deputies shot and killed peti­
tioner’s co-defendant and seriously wounded petitioner, 
while the two were handcuffed together being transported 
by the Sheriff from the prison to court and, despite the 
wide-spread publicity given this incident and its gravity, 
there was no grand jury investigation and the coroner’s 
jury found that the shootings were justifiable (Appendix, 
pp. 5-6); and that in another part of the State, the home of 
a Negro, an official of the organization identified with this 
case, was bombed and he and his wife were killed (Appen­
dix, p. 6).

The public opinion survey which petitioner unsuccess­
fully sought to have considered as evidence upon his motion 
for change of venue, showed, as alleged in the petition 
below (Petition, 6), that “ sixty-three percent of the popu­

*Ibid, pp. 51-53.



15

lation of Marion County either thought or were certain that 
petitioner was guilty and that eighty-three percent of 
Marion County’s Negro population feared that if a mem­
ber of the jury voted for acquittal, ‘ something would hap­
pen’ to him” (Appendix, p. 6).

The introduction into evidence of the false and manu­
factured testimony and the suppression of evidence on the 
part of the State must be read in the context of the “ preju­
dicial influences outside the courtroom” described above.

W herefore , fo r  th e  fo re g o in g  reaso n s , th e  ju d g m e n t b e­
low  sh o u ld  be re v e rse d .

Respectfully submitted,

T hurgood M arshall

J ack Greenberg

107 West 43rd Street 
New York 36, New York

P aul C. P erk in s
647 West South Street 
Orlando, Florida

F rank  D. R eeves
473 Florida Avenue, N. W. 
Washington 1, D. C.

Attorneys for Petitioner



APPENDIX

Petition for a W rit of Habeas Corpus

IN THE STATE SUPREME COURT 
S tate of F lorida

----------- o-----------
W alter. L ee L ivin',

vs.
Petitioner,

L. F. C h a pm a n , Superintendent of State Prison,
Respondent.

-------------------o-------------------

To the Honorable Chief Justice and Associate Justices-.

The petition of Walter Lee Irvin respectfully shows:

I. Petitioner is a citizen of the United States and of 
the State of Florida.

II. Petitioner makes application herein for a writ of 
habeas corpus in that he is unlawfully detained and re­
strained in his liberty by L. F. Chapman, Superintendent 
of the State Prison and is now in custody of L. F. Chap­
man, Superintendent, State Prison at Raiford, Florida.

III. The cause or pretext of such detention and re­
straint is the judgment and sentence of death pronounced 
upon petitioner by the Circuit Court of the Fifth Judicial 
Circuit of the State of Florida, in and for Marion County, 
on February 14, 1952, upon conviction of the crime of rape. IV.

IV. Said detention and restraint is unlawful in that the 
judgment and sentence are illegal and void as contrary to



2

the Fourteenth Amendment to the Constitution of the 
United States forbidding any state to deprive any person 
of life without due process of law. The judgment and sen­
tence are further illegal and void in that they are contrary 
to section 12 of the Declaration of Rights to the Florida 
Constitution.

Y. Petitioner, a Negro, was arrested on July 16, 1949, 
and indicted on July 20,1949 for the rape of Norma Padgett, 
a white girl. Arraigned on August 12, 1949, petitioner 
pleaded not guilty. Petitioner was tried before a jury from 
August 29 to September 3, 1949, found guilty and sentenced 
to death. On May 16, 1950, the Supreme Court of Florida 
affirmed this conviction. On writ of certiorari, the United 
States Supreme Court on April 9, 1951 reversed the judg­
ment and ordered a new trial.

VI. Petitioner and co-defendant Samuel Shepherd were 
again indicted for rape on July 6, 1951. Arraigned on 
August 23,1951, the petitioner and his co-defendant pleaded 
not guilty.

On October 17,1951 petitioner and his co-defendant filed 
in the Circuit Court of the Fifth Judicial Circuit in and for 
the County of Lake an application for removal of cause, 
stating that they were Negroes, and that the prejudice of a 
great number of Lake County’s citizens made them 
fear that a fair trial would be impossible in Lake County 
(TR. 20-35).*

On the same day, October 17, 1951, petitioner and his 
co-defendant also filed a motion to suppress certain evi­
dence on the ground that it was obtained by an unlawful

* The record in the case of Irvin v. Florida is referred to in the 
following manner: “TR.” refers to the transcript of record. “R.”
refers to the transcript of testimony. “Ex.” refers to exhibits in the 
above case, except that “Ex. A” and “Ex. B” refer to exhibits to this 
petition and are here attached.



3

search and seizure contrary to the Constitution of the 
United States and the Constitution and laws of Florida 
(TR. 43-46).

Before said motions could be heard, Samuel Shepherd 
was killed and petitioner seriously wounded on November 
6, 1951, while they were being transported from the state 
penitentiary at Raiford to Tavares for proceedings here­
in. On December 3, 1951, petitioner filed an amendment to 
his application for removal of cause, stating that on the 
night of November 6,1951, Willis V. McCall, sheriff of Lake 
County, murdered co-defendant Shepherd and that Sheriff 
McCall, aided by his deputy, Yates, seriously wounded peti­
tioner in an attempt to murder him (TR, 100-109).

On December 6, 1951 at the suggestion of the state’s at­
torney, the cause was removed to Marion County, Florida 
(TR. 118).

On February 2, 1952, petitioner filed a motion for re­
moval of cause from the Circuit Court for the Fifth Judi­
cial Circuit in and for Marion County, alleging that for 
reasons therein described, the sentiment in that County 
was little different from that in Lake County (TR. 208-230). 
Said motion reviewed the long history of violence and hos­
tility that surrounded this case, the prejudicial public state­
ments of state officials and the recent incident wheiein. Sam­
uel Shepherd was murdered and petitioner seriously 
wounded by state officials.

This application was heard by the Court on February 
11, 1952. At that time, defendant sought to introduce evi­
dence of a public opinion poll concerning the opinions of 
Marion County citizens as to petitioner’s guilt or innocence 
and the opinions of these citizens with respect to the pos­
sibility that violent reprisals would be taken against any 
member of the jury voting for accjuittal. This testimony 
was excluded over petitioner’s objection and the motion for 
a change of venue from Marion County was denied (R< 46- 
52, 55-57).



4

On the same day, February 11, 1952, the Court also 
denied petitioner’s motion to suppress (E. 165).

Petitioner was tried before a jury, which returned a 
verdict of guilty on February 14, 1952. On the same day, 
the Court pronounced the sentence of death by electrocu­
tion. A motion for new trial was denied on March 11, 1952. 
On appeal, the Supreme Court of Florida affirmed the con­
viction on June 23, 1953. The United States Supreme 
Court then denied certiorari on January 4, 1954 and 
denied a petition for rehearing on February 1, 1954.

VII. Petitioner’s conviction and sentence are illegal, 
void and in violation of the Fourteenth Amendment of the 
United States Constitution and Section 12 of the Declara­
tion of Eights to the Florida Constitution for the follow­
ing reasons:

A. Petitioner’s trial was conducted in an atmosphere 
of severe hostility. The refusal of the Circuit Court for 
the Fifth Judicial Circuit in and for Marion County to 
grant petitioner’s motion for a change of venue denied 
petitioner the possibility of a fair trial.

(1) At the time of the first trial, the entire community 
was infested with violence and prejudice. A mob gathered 
outside the county jail where petitioner and his co-defend­
ants were incarcerated and demanded that the men be 
turned over to them. A mob burned down the home of 
defendant Shepherd’s father and mother and the homes 
of two other Negro families. The National Guard was 
called out on July 17 and July 18, 1949 and on July 19, 
1949 the 116th Field Artillery was summoned to Tampa 
as Negroes abandoned their homes and fled. The press 
covered these events with passion-arousing headlines. (De­
fendant’s Ex. 2 and 3; concurring opinion of Mr. Justice 
Jackson, 341 U. S. at p. 50).

The newspapers also reported the apparent assertion 
of the Sheriff of Lake County that petitioner had con­



5

fessed, although no confession was ever introduced against 
him (Defendant’s Ex. 2).

(2) This atmosphere of hostility persisted following 
the decision of the United States Supreme Court reversing 
petitioner’s first conviction. Following this decision, the 
Sheriff of Lake County said publicly that the Supreme 
Court had bowed “ to subversive influences.” This was 
carried by the local press (Defendant’s Ex. 11).

(3) In November, 1951, several months prior to the 
second trial, the State Attorney charged publicly that peti­
tioner’s counsel of choice represented an organization 
which had “ been responsible for vicious, slanderous and 
libelous matter filed in this court. . . . ” (TE. 124). This 
statement further prejudiced the atmosphere.

(4) On November 6, 1951, Sheriff McCall of Lake 
County shot and killed Samuel Shepherd, petitioner’s co­
defendant. At the same time, Sheriff McCall, aided by 
Deputy Sheriff Yates, shot and wounded petitioner in an 
attempt to kill him. Petitioner alleges and wishes to 
prove that both of these acts were done without justifiable 
cause—that he and his co-defendant, while handcuffed to­
gether and alone with the Sheriff on a dark road at night, 
were deliberately and without provocation shot by the 
Sheriff and his deputy (Ex. A here attached).

In sworn statements before a special investigator for 
the Governor of Florida and before the coroner’s inquest, 
petitioner stated the above facts (TE. 104-108). Despite 
the gravity of the question, however, no grand jury in­
vestigation followed because petitioner and his co-defend­
ant were so odious to the community-at-large that no one 
either cared or was sufficiently courageous to initiate the 
customary proceedings in the matter.

The coroner’s inquest, which found that the shootings 
were justifiable, wTas a contrived hearing and was patently 
unfair. At the inquiry, one of the coroner’s jurors, before



6

hearing any evidence, expressed the conclusion that peti­
tioner and his co-defendant were justifiably shot (TR. 101, 
113).

The finding of the coroner’s inquest constituted a 
formal adjudication by the State that petitioner was an 
attempted escapee. Such an unfair adjudication seriously 
prejudiced public opinion against petitioner.

(5) On December 25, 1951, in another part of the State 
of Florida, Harry T. Moore, an official of the association 
which aided petitioner’s defense, and his wife, were killed 
by the bombing of their home. This further intimidated 
persons who viewed petitioner’s case impartially.

(6) Marion County is contiguous to Lake County and 
all the above events were reported in the Marion County 
press.

(7) The state of public opinion in Marion County at 
the time of petitioner’s trial was such that petitioner could 
not receive a fair trial. A public opinion survey conducted 
by one of the most reputable and impartial public opinion 
research organizations, the Elmo Roper Agency, shows 
that sixty-three percent of the population of Marion County 
either thought or were certain that petitioner was guilty 
and that eighty-three percent of Marion County’s Negro 
population feared that if a member of the jury voted for 
acquittal, “ something would happen” to him (Ex. B here 
attached, pp. 22, 23, 27, 31, 35).

B. The refusal of the Circuit Court for the Fifth 
Judicial Circuit in and for Marion County to allow peti­
tioner to introduce the results of the above-mentioned 
public opinion poll precluded petitioner from introducing 
substantial proof of the extent of the hostility pervading 
Marion County and the impossibility of petitioner’s obtain­
ing a fair trial. All of the allegations contained in para­
graph VII. A above are incorporated herein.



7

C. Petitioner was convicted by the use of evidence 
obtained by an unlawful search and seizure. On July 16, 
1949, Deputy Sheriff Yates appeared at petitioner’s 
mother’s home, where petitioner rented a room, and de­
manded of her a pair of shoes and a pair of trousers 
belonging to petitioner, stating that he ‘1 came for that little 
black nigger boy’s clothes.” The Deputy Sheriff had no 
search warrant although he had sufficient time to obtain 
one. Petitioner’s mother, a Negro, ignorant and unlearned 
in matters of law, was coerced by the presence of an official 
and complied with the request (R. 143-153, 157).

D. Petitioner was convicted by the use of evidence 
which was patently false and knowingly contrived by state 
officials.

The footprint casts made by Deputy Sheriff Yates are 
patently false because it is impossible that the original 
footprints, from which the casts were made, were made 
by a shoe with a foot in it. The sole of every shoe when 
worn on the foot makes a concave impression on the ground. 
The footprints which were the subject of the testimony at 
the trial were convex, and thus necessarily false and con­
trived (R. 436, 437). By knowingly using such evidence, 
the State deprived petitioner of a fair trial and thus denied 
him due process of law.

E. The totality of errors committed at petitioner’s 
trial deprived him of a fair trial.

Petitioner incorporates herein each and every allega­
tion made in Paragraph VII A, B, C and D.

Petitioner further alleges other seriously prejudicial 
errors, to w it:

(1) Various acts of prejudicial misconduct on the part 
of the Prosecutor denied petitioner a fair trial. In his 
closing agrument, the Prosecutor made invidious references 
(R. 510, 516) to petitioner’s race when he declared, inter



8

alia, “ . . . don’t you know that is the colored way of think­
ing” (R. 516).

The Prosecutor made an erroneous, prejudicial and 
highly unfair assertion about defense counsel when he 
stated that “ by a technicality he (defense counsel) stopped 
me from proving i t” (R. 508). . . . This assertion was con­
sidered by the Supreme Court of Florida to be erroneous 
and the refusal of the trial court to instruct the jury to 
disregard this remark was likewise considered error by 
that court.

The Prosecutor seriously prejudiced petitioner when he 
asserted his personal belief in petitioner’s guilt and when 
he referred to his ill health in order to evoke sympathy 
(R. 505-506, 518).

In view of the hostile atmosphere which had long sur­
rounded this case and in view of the allegations contained 
in Paragraph YII A of this petition, the Prosecutor seri­
ously prejudiced petitioner by referring in his closing 
statement to the help obtained by petitioner from outside 
the state and by asserting that “ .. . any negro can get a fair 
trial in Marion County, if the outside world would just 
leave us alone . . . ” (R. 504).

(2) The State engaged in a constructive suppression 
of evidence by refusing to obtain accurate scientific 
analysis of the raw physical evidence which was found. 
Such scientific analysis was available to local law enforce­
ment officials.

The state introduced into evidence petitioner ’s trousers 
containing a smear thereon (State Ex. 3, R. 356-357). The 
implication of this evidence was that the smear was a semen 
stain. The State refused, however, to secure available 
scientific analysis in order to determine accurately whether 
the stain was in fact semen.

The state introduced into evidence “ lint” found near 
the scene of the alleged crime. There was testimony that



9

this “ lint” was similar to that found in co-defendant’s 
Shepherd automobile. The State, however, failed to secure 
accurate scientific anaylsis necessary to make a true com­
parison (State’s Ex. 2, R. 354-356).

Plaster casts of tire tracks were made by Deputy Sheriff 
Tates.

The State failed here again to secure an accurate 
scientific analysis which would take into consideration 
such highly pertinent factors as evidence of wear, air bells, 
wear by gravel or stone, etc. (R. 431, 352-353, 365-366).

By refusing to obtain accurate scientific analysis of the 
raw physical evidence and by introducing third grade evi­
dence of practically no probative value but full of pre­
judicial innuendoes, the State denied petitioner a fair trial 
and thus denied him due process of law.

VIII. The cumulative effect of each of the violations 
of petitioner’s fundamental rights as set forth in Para­
graph VII rendered petitioner’s trial a mask for the denial 
of his constitutional rights guaranteed in the Fourteenth 
Amendment to the United States Constitution and Section 
12 of the Declaration of Rights to the Florida Constitu­
tion.

IX. Sheriff McCall’s deliberate killing of Samuel Shep­
herd resulted in the suppression of evidence which Samuel 
Shepherd could have given on behalf of petitioner herein 
and which would have proved petitioner’s innocence of the 
crime which he was charged.

X. The State engaged in a constructive suppression of 
evidence by refusing to have the medical doctor testify 
who had examined Norma Padgett early the same morning 
the alleged rape was supposed to have occurred, and your 
petitioner based upon information and belief, believes that



10

the State suppressed the testimony of the medical doctor 
because the said medical doctor would have testified that 
Norma Padgett had not been raped.

W herefore , petitioner prays that a writ of habeas 
corpus issued herein directed to the said L. F. Chapman, 
Superintendent of the State Prison, commanding him to 
produce the body of the petitioner Walter Lee Irvin before 
this court at a time and place to be specified in said writ, 
to the end that this court may inquire into the cause of 
the petitioner’s detention, and that the petitioner be ordered 
discharged from the detention and restraint aforesaid.

Dated this 3rd day of November, 1954.

W alter L ee I rv in ,
Petitioner.

P aul C. P er k in s , Esq.,
647 West South Street,

Orlando, Florida,

T hurgood M arshall, J ack Greenberg , 
107 West 43rd Street,

New York, New York,
Attorneys for Petitioner.



11

S tate op F lorida 
C ounty  op Orange

W alter L ee I rv in , being duly sworn, deposes and says 
that he is the petitioner named in the foregoing petition 
subscribed by him; that he has read the same and knows 
the contents thereof; and that the same is true to his own 
knowledge, except as to those matters therein alleged on 
information and belief, and as to those matters he believes 
them to be true.

W alter L ee I rvin .

Subscribed and sworn to before me 
this 3rd day of November, 1954.

Notary Public, State of Florida at Large.

Notary Public, State of Florida at large 
My commission expires Jan. 6, 195?. 

Bonded by American Surety Co. of N. Y.

(seal)



12

Exhibit A

S tate of F lorida 
C ounty  of Orange

I ,  W alter L ee  I rv in , b e in g  d u ly  sw orn , dep o ses  an d  
says:

That on November 6, 1951, after dark, Sheriff McCall 
and Deputy Sheriff Yates came to Raiford to pick up 
Samuel Shepherd and me. We got into the sheriff’s car. 
At Wiersdale, Deputy Sheriff Yates got into another car, 
but Shepherd and myself stayed in the sheriff’s car. We 
were handcuffed together in the front seat. Shepherd was 
on the outside and I was in the middle.

Before we got started again the deputy went to see 
whether the car would start. He cranked it and it started. 
At Wiersdale, where there is a school, there is a clay road 
that turns off the highway. The deputy sheriff turned off 
onto that road and the sheriff followed. We went on that 
road a short distance; I do not know how far. The sheriff 
and the deputy were talking on the radio.

The deputy sheriff turned off to the right. I do not know 
where he went. We turned off to the right and went on 
down the road apiece until the sheriff began to shimmy his 
wheels. The sheriff pulled off to the side and stopped, stat­
ing that, “ something is wrong with my left front tire.” 
He got a flashlight with a red band from under the seat 
on the floor board, got out of the car and checked the tires. 
He then came back into the car and said that he could not 
find anything wrong. He drove about two more miles and 
then stopped again. The wheels started shimmying again. 
The sheriff got out of the car again with his flashlight, 
kicked the right front wheel and then came around to where 
Shepherd was sitting on the righthand side of the car. 
The sheriff then said, “ You SOB’s get out and get this tire 
fixed.” I did not see any tires in the back, but we had to



13

obey because he was the sheriff. We then went to get out. 
The sheriff then fired right quick at Shepherd and then he 
fired at me hitting me in my chest. He then grabbed me by 
the clothes and threw me to the ground. He also threw 
Shepherd to the ground. I did not say anything. He then 
shot me again in the shoulder, but I still did not say any­
thing.

I then heard him say, “ I got rid of them, killed the 
SOB’s.” The sheriff then ran around to the car and called 
t;he deputy sheriff on the radio. I heard him say to the 
deputy, “ Pull around here right quick, these SOB’s tried to 
jump me and I did a good job.”

The deputy sheriff soon came, pulled his car over to 
where the sheriff’s car was parked and got out of the car. 
The deputy shined a light into my face and said to the 
sheriff, ‘ ‘ That SOB is not dead; let’s kill him. ’ ’ The deputy 
then pointed a pistol at me and pulled the trigger but the 
gun did not shoot. The deputy then took the pistol around 
to the car lights and looked at it. He then returned and 
fired at me. The bullet hit me in the neck and I began to 
bleed out of my nose. I still did not say anything; I did not 
let them know I was not dead.

I did not try to jump the sheriff. I did not try to escape 
that night.

(Signed) W alter L ee I rvin 
Walter Lee Irvin

Subscribed and sworn to me this 3rd day of November, 
1954, at Raiford, Florida.

P aul C. P erk in s

Notary Public, State of Florida at large 
My commission expires Jan. 6, 1958 

Bonded by American Surety Co. of N. Y.



14

Opinion of Sebring, J .

IN THE SUPREME COURT OF FLORIDA 
J u ne  T e e m , A. D. 1954 

E n  B anc.

Case No. 25,436

------------------------- o ----------- -— —

W alter L ee I rv in ,

vs.
Petitioner,

L. F. C h a pm a n , Superintendent of State Prison,
Respondent.

o

Opinion filed November 5, 1954.
A Case of Original Jurisdiction—Habeas Corpus.
P axjl C. P e r k in s , T hurgood M arshall a n d  J ack Greenberg , 

for Petitioner.
R ichard W. E r v in , Attorney General and R eeves B ow en , 

Assistant Attorney General, for Respondent.

S ebring , J.
By this habeas corpus proceeding the petitioner attempts 

to question the legality of the judgment and sentence here­
tofore entered in this cause. From a study of the petition 
it appears that, with the exception of the matters herein­
after noted, the petitioner has alleged no facts in his peti-



15

.tion that have not heretofore been set at rest by this Court 
on an appeal from the judgment and sentence entered in 
the original cause. See Irvin v. State (Fla.), 66 So. 2d 
288, certiorari denied 346 U. S. 927, 98 L. Ed. 205, 74 S. Ct. 
316, reh. den. 347 U. S. 914, 98 L. Ed. 353, 74 S. Ct. 479. 
Therefore, such matter is not now open for adjudication.

As to new matter which it is suggested by the peti­
tioner should be sufficient to require that the judgment and 
sentence be set aside and a new trial awarded, the peti­
tioner avers in his petition that subsequent to the first 
trial of the original cause—Shepherd et al. v. State (Fla.), 
46 So. 2d 880, reversed by Supreme Court of United States, 
341 U. S. 50, 95 L. Ed. 740, 71 St. Ct. 549, and remanded 
for new trial, 52 So. 2d 903—the sheriff of the county in 
which the crime is alleged to have occurred shot and killed 
one Samuel Shepherd, a codefendant in the case, which 
“ resulted in the suppression of evidence which Samuel 
Shepherd could have given on behalf of petitioner herein 
and which could have proved petitioner’s innocence of the 
crime for which he was charged.”

As to this point, the records of this Court, of which we 
take judicial notice, show that at the first trial of this 
cause the codefendant Shepherd was sworn and testified 
in full detail as to the activities in which he and the peti­
tioner were engaged. Section 920.09, Florida Statutes 1951, 
provides that when a new trial is granted in a criminal case 
such new trial shall proceed in all respects as if no former 
trial had been had; except that if witnesses used on the 
first trial are dead at the time of the second trial “ the 
evidence of such witnesses on former trial may be pre­
sented as the same was taken by the court reporter.”

The records of this Court show also that on the second 
trial of this cause in the court below, no effort was ever 
made by the petitioner to introduce into evidence a tran­
scribed copy of the evidence given at the former trial by 
the decedent Shepherd. Having failed to introduce this



16

evidence at the second trial, the petitioner is foreclosed 
from now raising* the question as to what testimony Shep­
herd might have given at the second trial had he lived and 
elected to take the stand and give testimony in behalf of 
the petitioner. State ex rel. Johnson v. Mayo (Fla.), 69 
So. 2d 307, certiorari denied 347 U. S. 992, 98 L. Ed. 722, 
74 S. Ct. 855.

The only other new matter that petitioner has attempted 
to inject into his petition as the basis for a new trial is the 
averment in the petition that upon the second trial of the 
cause in the court below “ The State engaged in a con­
structive suppression of evidence by refusing to have the 
medical doctor testify who had examined the [victim of 
the alleged rape] early the same morning the alleged rape 
was supposed to have occurred, and your petitioner based 
upon information and belief, believes that the state sup­
pressed the testimony of the medical doctor because the 
said medical doctor would have testified that [the victim 
of the alleged rape] had not been raped.”

It takes nothing more than a casual inspection of this 
allegation to disclose that it does not constitute a sufficient 
predicate for the issuance of the writ. It is not shown, 
for example, that the petitioner did not know that the 
medical doctor had examined the victim of the rape. It is 
not shown that any effort was ever made by the petitioner 
to call the doctor as a witness to testify in his behalf. It 
is not shown that the medical doctor would have given tes­
timony favorable to the petitioner had he been called to 
testify. All that is shown by the petition in this regard is 
that the petitioner believes that if the doctor had been 
called he might have given testimony favorable to his 
cause. Therefore, in the light of the tacit admissions in 
the allegations of the petition, it is entirely immaterial 
that the state did not call the medical doctor as a witness, 
because the defendant, petitioner in this proceeding, was 
free to do so.



17

Furthermore, while from aught that appears in the 
petition to the contrary, the petitioner might have known 
at the time of the second trial that the medical doctor had 
examined the victim of the rape, the petitioner has not 
made any attempt in his petition to give a reason for his 
failure to raise on the prior appeal the ground how 
asserted for the first time in his petition for habeas corpus. 
Therefore, it must be held, under the decisions, that he 
has waived or forfeited the right to raise the issue by his 
failure to make timely assertion thereof. State ex rel. 
Johnson v. Mayo, supra. Habeas corpus may not be used 
as a vehicle to raise for the first time questions that the 
petitioner had a fair and adequate opportunity to raise, 
and could and should have raised, during the formal trial 
of the cause.

At the bar of this Court counsel for the petitioner has 
requested the Court, in the event it denies the petition, to 
grant a stay of sentence to enable the petitioner to seek a 
review of our order by certiorari. We find no federal ques­
tion involved in this controversy, and consequently the 
application for stay should be denied.

Accordingly, it is ordered that the petition for the writ 
of habeas corpus, and the application for a stay order, be 
and the same are hereby severally denied.

R oberts, C. J T errell, T homas, H obson, M athew s an d  
D rew , JJ., concur.



18

IN THE SUPREME COURT OF FLORIDA:

I , Guyte P. M cCord, Clerk of the Supreme Court of 
Florida, do hereby certify that the foregoing and attached 
four pages constitute a true and correct copy of the opinion 
and judgment of said Court filed in said Court on Novem­
ber 5th, 1954, in that, certain cause recently pending in 
said Court wherein Walter Lee Irvin was Petitioner, and 
L. F. Chapman, Superintendent of State Prison, was Re­
spondent, all as the same appears among the records and 
files of my said office.

I n W itn ess  W h ereo f , I have hereunto set my hand and 
affixed the Seal of said Court, at Tallahassee, the capital, 
on this the 10th day of November, 1954.

Guyte P. M cCord, 
Clerk of the Supreme Court 

of Florida.
( S e a l )



■#