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McGAHEE v. MASSEY

No. 80-5910.

667 F.2d 1357 (1982)

Robert McGAHEE, Petitioner-Appellee, v. Raymond D. MASSEY, Superintendent, Union Correctional Institution, Respondent-Appellant.

United States Court of Appeals, Eleventh Circuit.

February 16, 1982.

Attorney(s) appearing for the Case

Max Rudmann, Robert L. Bogen, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellant.

Robert E. Austin, Jr., Leesburg, Fla., for petitioner-appellee.

Before FAY, ANDERSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

A confrontation between the defendant's belatedly asserted fifth amendment right to remain silent and the prosecutor's ability to present fair comment on the evidence sets the legal stage for this appeal. The State of Florida appeals from the grant of a writ of habeas corpus by the Middle District of Florida on October 15, 1980. Having found the defendant to have waived his fifth amendment right by testifying on the merits of his case and having...

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