Wright v. Estelle, 76-2146

• Decision Date: 30 March 1977
• Docket Number: No. 76-2146,76-2146
• Citation: 549 F.2d 971
• Parties: Archie D. WRIGHT, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 971

549 F.2d 971

Archie D. WRIGHT, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 76-2146.

United States Court of Appeals, Fifth Circuit.

March 30, 1977.

John W. Jennings, Atty., Staff Counsel for Inmates, Tex. Dept. of Corr., Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Chief, Enforcement Div., David M. Kendall, First Asst. Atty. Gen., Richel Rivers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEWIN, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

This is an appeal from a judgment of the district court denying petitioner, Archie Wright's, application for a writ of habeas corpus. ¹ The complaints presented in this application were previously presented to the state criminal court where a full evidentiary hearing was afforded petitioner and the application was denied. In this federal habeas appeal petitioner submits he had a fundamental right under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution to testify in his own behalf which could not be waived by his attorney for purposes of trial strategy.

During the trial of petitioner, a conflict arose between petitioner and one of his court-appointed attorneys as to whether petitioner should be allowed to take the stand in his own defense. This attorney testified at the state habeas hearing it was his decision and if petitioner insisted on testifying he would not represent him. He also stated that the reason he refused to allow petitioner to testify was that he was afraid petitioner would testify to a version of the facts different from the prosecution's key witness, Joe Kenneth Polk, and the defense's key witness, Robert Lee Davis, both of whom were indicted for the same crime, murder with malice, and convicted in separate proceedings. For the following reasons we affirm the judgment below.

On August 22, 1966, a robbery of the Atlantic Liquor Store, was attempted during which the owner-operator, John Brown Cooper, was shot to death. There were no eye witnesses except the perpetrators themselves. At the scene of the crime a pair of work pants belonging to Polk were found under the body of the victim. After an investigation the police arrested Polk, Robert Lee Davis, and Archie Wright, the petitioner. Davis was the first of the three tried. He was convicted and sentenced to life in prison. Petitioner was subsequently tried and during his trial Polk testified for the prosecution. His testimony is basically the following.

On August 22, 1966, Polk was employed at the Fidelity Union Parking Garage on the day shift which lasts from 7:00 A.M. to 7:30 P.M. On this day Archie Wright and Robert Davis came to visit Polk on the job at approximately 6:00 P.M. The three of them and Sam Giles, another employee, went to the garage's locker room where they stayed until 7:35 P.M. when Polk's shift ended. Polk testified upon leaving he carried a pair of his work pants and petitioner carried a paper bag. The four of them went to the nearby Salinas Cafe where Polk had a sandwich and each had a beer. They left the restaurant after about ten minutes and proceeded to the All Right Garage where Polk had a conversation with Raymond Major, an employee there. ² While he was talking Davis and Wright left together. About five minutes later Polk followed and began looking for them. Polk testified that in his search he found it necessary to ask a lady standing at a bus stop if she had seen the other two men. She had and directed Polk across the street to the Pulley Bone which was a short block away from the liquor store. Polk crossed the street and at that point saw Wright in front of the liquor store and called to him. Petitioner responded by motioning Polk away and then entered the liquor store. Polk headed toward the liquor store and heard a gun shot when he was two doors away. He had not seen Davis until that moment when both Wright and Davis in that order emerged from the store. Wright still carried the paper bag. Wright immediately said "Robert shot that man," and Robert then said "I had to". Both Wright and Davis then ran across the street toward the Fidelity Union Life Building. Polk then returned to the All Right Garage where he questioned Raymond Major to see if he had seen Wright and Davis pass by. Polk admitted on the stand he did this in order to give the impression he knew nothing about what had happened. ³

Polk also testified that in conversation with Wright earlier that week Wright said he had owned two guns the first without a firing pin and the second which he now had with a firing pin. Polk also added that he carried a pair of his pants with him on the evening of August 22 but he did not know how his pants ended up underneath the victim. It is also not clear from the record whether there was more than one pair of pants.

For his defense petitioner's counsel called Robert Lee Davis to the stand. Davis testified that on August...