Clyde McGarry v. Jack Fogliani, Warden, Etc.

Appellant seeks habeas corpus, attacking his conviction of grand larceny in a Nevada state court and his sentence as an habitual criminal under Nevada Rev. Stat. 207.010. He was charged, in an amended information, with five prior convictions.

He claims that the statute violates Article I, § 3 of the Nevada Constitution, which guarantees the right to trial by jury, and also the Sixth and Fourteenth Amendments to the Constitution of the United States, particularly the Sixth Amendment guarantee of jury trial. The first contention, being purely a question of state law, is not open to him in federal habeas corpus.

The second contention is insufficient. It is settled, in Nevada and elsewhere, that the charge of prior convictions is not a statement of an additional offense, but only of matter affecting possible punishment. There is but one offense and one punishment. And the fact that the priors were found by the judge, not the jury, does not violate the United States Constitution.

Appellant also asserts that his retained counsel failed to perfect an appeal from his conviction. Standing alone, this is not a ground for federal habeas corpus. He makes no showing whatever that any…