Opinion · Court of Appeals for the Fifth Circuit
Robinson v. Parsons
560 F.2d 720
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1977-10-11
- Topic
- bankruptcy
PER CURIAM: Appellants challenge their state-court convictions of knowingly selling obscene materials in violation of Birmingham City Ordinance 67-2.1 The district court, on the basis of the state court record, denied habe-as relief. We affirm. Appellants first attack the ordinance. They argue it was unconstitutionally vague, failing to give them fair warning that their activities were illegal. They also advance the separate claim that the ordinance, as construed by the Alabama courts, fails to accord with the requirement of Miller v.
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- Authority status
- pending
- Cited by
- 13 opinions
ROBINSON v. PARSONS,560 F.2d 720(5th Cir. 1977)
MICHAEL ROBINSON, PETITIONER-APPELLANT, v. JAMES C. PARSONS, IN HIS CAPACITY
AS CHIEF OF POLICE, CITY OF BIRMINGHAM, ALABAMA, RESPONDENT-APPELLEE. NO.
77-1353.
GEORGE HARLOW, PETITIONER-APPELLANT, v. JAMES C. PARSONS, IN HIS CAPACITY AS
CHIEF OF POLICE, CITY OF BIRMINGHAM, ALABAMA, RESPONDENT-APPELLEE. NO.
77-1359.
THOMAS D. McGARY, PETITIONER-APPELLANT, v. JAMES C. PARSONS, IN HIS CAPACITY
AS CHIEF OF POLICE, CITY OF BIRMINGHAM, ALABAMA, RESPONDENT-APPELLEE.
Nos. 77-1345, 77-1353 and 77-1359.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
October 11, 1977.
Herbert Jenkins, Jr., Birmingham, Ala., for respondent-appellee.
Before GOLDBERG, CLARK and FAY, Circuit Judges.
[2] Appellants first attack the ordinance. They argue it was unconstitutionally vague, failing to give them fair warning that their activities were illegal. They also advance the separate claim that the ordinance, as construed by the Alabama courts, fails to accord with the requirement ofMiller v. California,413 U.S. 15,24,93 S.Ct. 2607,37 L.Ed.2d 419(1973), that the proscribed sexual conduct be specifically defined. We reject these claims on the authority ofMcKinney v. Parsons,513 F.2d 264(5th Cir.),cert. denied,423 U.S. 960,96 S.Ct. 276,46 L.Ed.2d 289(1975), which dealt with this same ordinance and found these same contentions unavailing.2
[3] Appellants also contend that the relevant publications were not obscene under the governing standards. Because appellants' sales occurred prior to the decision inMiller v. California, supra,they are entitled to any benefits of the then-prevailing standards ofMemoirs v. Massachusetts,383 U.S. 413,86 S.Ct. 975,16 L.Ed.2d 1(1966) (plurality opinion). They may also invoke any benefits ofMiller. See Marks v. United States,430 U.S. 188,97 S.Ct. 990,51 L.Ed.2d 260(1977). The Alabama courts and the district court on this habeas challenge found these materials obscene under bothMemoirsandMiller.That conclusion violates the standards of neither case. The decision is
[4] AFFIRMED.Page 1188
- Rule 18, 5 Cir.,Isbell Enterprises, Inc. v. CitizensCasualty Company of New York, et al.,5 Cir., 1970,431 F.2d 409, Part I. ↩
- That ordinance has apparently been repealed.See McKinneyv. Parsons,513 F.2d 264,266n. 1 (5th Cir.) (quoting ordinance in full),cert. denied,423 U.S. 960,96 S.Ct. 376,46 L.Ed.2d 289(1975). ↩
- The firm rule in this circuit is to adhere to a prior panel's decision absent intervening contrary authority from the Supreme Court or our en banc court. Here the only relevant intervening authority isWard v. Illinois,431 U.S. 767,97 S.Ct. 2085,52 L.Ed.2d 738(1977), which does not undermineMcKinney.We thus reject appellants' attack onMcKinneyand adhere to its holding. ↩