Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I

The only other issue raised on direct appeal by McCluster questioned the sufficiency of the evidence at trial to establish his guilt beyond a reasonable doubt

The complete text of the opinion is as follows:

"Affirmed. The procedure followed by the police did not violate the principles set forth in Biggers v. Tennessee, 390 U.S. 404, 88 S. Ct. 979, 19 L. Ed. 2d 1267 (1968). See also Raco v. State, Fla.App.1959, 114 So. 2d 485; Urga v. State, Fla.App.1958, 104 So. 2d 43."

The State of Florida, in response, offers two "details" which it feels are significant: first, that the transcript of testimony at trial is barren of any objection to, or a motion to suppress, any identification testimony at or before trial; and secondly, that issues of constitutional proportion may be raised at any time in a Rule 1.850 motion, an exception to the general Florida rule that an issue which was, or could have been, assigned as error on appeal cannot constitute grounds for collateral attack. The state's first "detail" is unresponsive to the issues before us, inasmuch as the state is essentially arguing the merits of McCluster's petition, not the threshold legal question of whether he should be heard in federal court at all. Nor does this "detail" lead to the conclusion that the state court, on appeal, was unable to consider McCluster's claims

The second "detail" presented does not reach the issue of whether McCluster is required, under federal law, to pursue a collateral attack remedy simply because it may be available to him when the state courts have made it clear, on direct appeal and through habeas corpus proceedings, that they are unreceptive to McCluster's claims.

As to the jurisdiction and status of District Courts of Appeal as courts of last resort in Florida, see Fla.Const., Article V, Sec. 4(2), F.S.A. (regarding the jurisdiction of the Florida Supreme Court) and Sec. 5(3) (regarding the jurisdiction of the District Courts of Appeal) (1968); also see, Fla.Stat. Sec. 924.08(1)-(2) (1969), F.S.A. and Fla.App.Rules, Rule 2.1, subd. a(5) (a) and (b), 32 F.S.A. Also see, e. g., Gardner v. Wainwright, 5 Cir. 1970, 433 F.2d 137; Lawyers Title Ins. Corp. v. Little River Bank and Trust Co., 243 So. 2d 417 (Fla.1970); and Taylor v. Knight, 234 So. 2d 156 (Fla.App.1st 1970)

Although unnecessary to our disposition of this case, it appears that Florida law would preclude McCluster from any relief under Florida's collateral attack proceeding. Under Florida law an issue which was, or could have been, assigned as error on direct appeal cannot constitute grounds for collateral attack through post-conviction proceedings. See, Powell v. State, 244 So. 2d 746 (Fla.App.1st 1971); Tafero v. State, 242 So. 2d 470 (Fla.App.3rd 1971); Bretti v. State, 239 So. 2d 527 (Fla.App.3rd 1970); Peterson v. State, 237 So. 2d 223 (Fla.App.1st, 1970); and Albright v. State, 239 So. 2d 641 (Fla.App.2nd 1970)

Additionally, the principle of res judicata is applicable in Florida to points raised by a post-conviction collateral attack motion which were raised in a prior appeal. See, e. g., Suarez v. State, 220 So. 2d 442 (Fla.App.3rd, 1969); Whitney v. State, 184 So. 2d 207 (Fla.App.3rd 1966). In its most recent pronouncement in this area, the Florida Supreme Court held in Jones v. Wainwright, 252 So. 2d 570 (Fla.1971) [decided September 8, 1971], that:

"[t]he basis asserted for the petition is that defendant was not represented by counsel at a preliminary hearing. This issue was presented to the Third District Court of Appeal and was decided adversely to the petitioner. * * * This Court will not reconsider on a petition for writ of habeas corpus those issues already considered and determined by another appellate court. * * * As between the state and this defendant, those issues already disposed of are res judicata in a collateral proceeding such as habeas corpus or under Criminal Procedure Rule 1.850." (citations omitted) (Emphasis added)