Conley v. Beto

• Decision Date: 16 May 1972
• Docket Number: No. 71-2330.,71-2330.
• Citation: 460 F.2d 210
• Parties: Michael D. CONLEY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Dept. of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 210 (1972)

Michael D. CONLEY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Dept. of Corrections, Respondent-Appellee.

No. 71-2330.

United States Court of Appeals, Fifth Circuit.

May 16, 1972.

Gerald T. Calhoun, Houston, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen. of Tex., Robert Darden, Asst. Atty. Gen., Austin, Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this petition for habeas relief Michael D. Conley contends certain evidence admitted at his trial was the product of coercive influences and an illegal arrest. We affirm the district court's denial of the petition.

Conley was convicted in a Texas state court of stealing an electrical blender and a television set from the Southland Hardware Store in Houston, Texas. This offense is a felony under Texas law,¹ and since Conley had two previous felony convictions he was mandatorily sentenced to a term of life imprisonment under Article 63 of the Vernon's Ann. Texas Penal Code. After appealing unsuccessfully to the Court of Criminal Appeals of Texas,² Conley petitioned for a writ of habeas corpus in federal district court. The district judge granted relief, but on appeal this court reversed and remanded so that Conley might apply to the state courts for an evidentiary hearing. Beto v. Conley, 5 Cir. 1968, 393 F.2d 497, following this court's earlier decision in Texas v. Payton, 5 Cir. 1968, 390 F.2d 261. However, the Texas state courts refused to grant Conley an evidentiary hearing and he again brought a habeas petition in federal district court. After holding an evidentiary hearing the district judge denied relief, 328 F.Supp. 49, and this appeal followed.

The events which led to Conley's arrest began on September 11, 1963, when Houston police officers received a call to investigate a felony theft from the House of Television. An employee of the store stated that a woman had entered the store and engaged a salesman in a conversation about the purchase of a television. While the salesman was distracted a man entered the store, picked up a Zenith radio, and left without paying. The man with the radio then drove away accompanied by another man in an automobile described as a black and white 1956 Buick with license number TP 2510. Although the woman was left behind officers subsequently found her using the telephone in another store near the House of Television. When questioned by police officers the woman stated that she had reached the House of Television by Courtesy Cab. Upon subsequent investigation police learned that no Courtesy Cab had taken any person to that location, and that the woman, Carolyn Williamson, had been arrested several times previously and was presently on bond for car theft.

Two days later, on September 13, 1963, police officers learned from an unidentified informant that the 1956 Buick could be found at a local motel, the Blue Top Courts. The officers proceeded to that location and observed the automobile parked under a carport adjacent to one of the cabins. After consulting with the management the officers knocked on the door of the cabin and were permitted to enter. The occupants were Conley and another man named Hafti. Hafti admitted possession of the automobile, and in plain view on the back seat of the vehicle officers observed a box containing a blender with the sales tag attached. At this point Conley and Hafti were placed under arrest and taken to police headquarters. While under interrogation Conley admitted stealing the blender and a television set from the Southland Hardware Store, and these inculpatory statements were admitted into evidence against him.

In considering the admissibility of this confession we note that Conley's trial took place at a time after the decision in Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, but prior to Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Thus, Escobedo, but not Miranda, governs the disposition of this appeal. Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

While conceding that "Escobedo protects the right to counsel only when counsel is requested . . . .", Sellars v. Beto, 5 Cir. 1970, 430 F.2d 1150, 1154, Conley contends that he repeatedly requested an attorney during his interrogation and that the state's denial of these requests necessitates reversing his conviction. However, the district court found that Conley at no time asked to see an attorney. We hold that this finding is a credibility choice which is supported by substantial evidence...