Gray v. Estelle, s. 77-2133

• Decision Date: 30 May 1978
• Docket Number: Nos. 77-2133,77-2541,s. 77-2133
• Citation: 574 F.2d 209
• Parties: George Edward GRAY, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 209

574 F.2d 209

George Edward GRAY, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.

Nos. 77-2133, 77-2541.

United States Court of Appeals, Fifth Circuit.

May 30, 1978.

Rehearing Denied June 28, 1978.

John L. Hill, Atty. Gen., Douglas M. Becker, David M. Kendall, Jr., Joe B. Dibrell, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellant.

Ken Anderson, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellee.

Appeals From The United States District Court For The Southern District of Texas.

Before SKELTON ^*, Senior Judge, and FAY and RUBIN, Circuit Judges:

SKELTON, Judge.

This is an appeal from a habeas corpus proceeding in the United States District Court for the Southern District of Texas, Houston Division. On May 13, 1970, the Petitioner (appellee), George Edward Gray, was found guilty by a jury in the 184th District Court of Harris County, Texas, of the offense of murder with malice and was sentenced by the court to seventy-five years confinement in the Texas Department of Corrections. He appealed his case to the Texas Court of Criminal Appeals, which affirmed his sentence in Gray v. The State of Texas, 475 S.W.2d 246 (Tex.Cr.App.1971). The Petitioner then filed an application for a writ of habeas corpus in the above Federal District Court after serving approximately seven years of his sentence. Following an evidentiary hearing on March 3, 1977, the District Court made findings of fact and conclusions of law on March 29, 1977 and entered an order granting relief to the Petitioner. The Respondent (appellant) filed a notice of appeal on April 25, 1977, and a Motion for Stay of Order that was granted on May 9, 1977. The Respondent filed a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure on June 6, 1977, which was denied by the Court on July 14, 1977. The Respondent gave notice of appeal on July 25, 1977, and on August 10, 1977, this Court granted Respondent's Motion to Consolidate the two appeals. We now consider those appeals.

The basic questions in these proceedings are (1) whether or not Petitioner's attorney, T. W. Proctor, had a conflict of interest during the trial of Petitioner in the State District Court, and (2), if such conflict of interest did exist, whether or not the Petitioner knowingly, voluntarily, intentionally and intelligently, after full disclosure, waived his right to conflict-free counsel before he was tried in the State District Court.

The pertinent facts show that attorney, T. W. Proctor, had a typewriter rental business in addition to his law practice. He had filed a complaint against Petitioner, whom he did not know, for theft by bailee of a typewriter. While the complaint was pending, Petitioner was indicted on December 17, 1969, for murder with malice. Proctor wanted to defend Petitioner in the murder case in order to gain experience in a criminal trial, and he told Petitioner that if Petitioner employed him the theft complaint would be dismissed. Proctor also told Petitioner that he (Proctor) thought he could win the murder case. The Petitioner employed Proctor to defend him in the murder case, but since the Petitioner was without funds, Proctor was later appointed by the court as counsel for Petitioner so that Proctor could at least be paid his expenses. After Proctor became Petitioner's counsel in the murder case, he asked that the theft case against Petitioner, for which Petitioner was indicted on April 13, 1970, be dropped, but it was not actually dismissed until after the completion of the murder trial.

The jury returned a verdict of guilty in the murder case and the court sentenced Petitioner to confinement for seventy-five years. His trial counsel, T. W. Proctor, filed a motion for new trial, which was overruled by the court. Whereupon, Proctor gave notice of appeal to the Texas Court of Criminal Appeals. A short time thereafter, Proctor, because of his inexperience, asked the court to relieve him of the responsibility of appealing the case, which request was granted by the court. Thereafter, the court appointed attorney Carl E. F. Dally as Petitioner's counsel for the appeal.

Attorney Dally filed an Amended Motion for New Trial. He asked the court to allow him to withdraw the notice of appeal, which request was granted by the court. In the Amended Motion for New Trial, Petitioner raised for the first time the assertions that he was denied a fair trial because (1) his trial counsel, T. W. Proctor, had a conflict of interest (by reason of the facts set forth above), and (2) he was denied effective aid and assistance of counsel in the trial of his case. The trial court denied the Amended Motion for New Trial, whereupon Petitioner gave notice of appeal, and thereafter appealed his case to the Court of Criminal Appeals. That court affirmed the judgment of the trial court, holding as to the alleged conflict of interest and lack of effective counsel as follows:

"Appellant contends his counsel, prior to his employment by appellant, charged appellant with theft of a typewriter. Appellant's counsel testified that he had discussed this matter with appellant when he was employed by him, and that he had tried to get the case dismissed. We perceive no error.

"Appellant contends he was denied effective aid and assistance of counsel in the trial court. We have examined the record and conclude that appellant was adequately represented." 475 S.W.2d 248.

Thereafter, Petitioner began serving his sentence in the Texas penitentiary. Seven years later he filed the above-mentioned petition for a writ of habeas corpus in the Federal District Court in Houston, Texas, asking that he be released from custody because he had been denied a fair trial in his murder case in the state court, in that (1) his trial counsel, T. W. Proctor, had a conflict of interest during the trial, and (2) he was denied effective aid and assistance of counsel in the trial court because of the inexperience and lack of ability of his attorney in defending him during the trial. The Federal District Court aforesaid held an evidentiary hearing. The evidence at the hearing consisted of a copy of the court records of the state trial court, including the trial transcript and the amended Motion for a New Trial, and the oral testimony of Petitioner's trial attorney, T. W. Proctor. The only evidence produced before the Federal District Court as to the alleged conflict of interest was the contents of the Amended Motion for New Trial and the oral testimony of Proctor. It became important at the hearing to determine whether or not the alleged conflict of interest was known to the State trial judge before Petitioner's murder trial, and whether the trial judge discussed the matter with Petitioner and participated in proceedings with Petitioner before his trial began that amounted to a knowing and voluntary waiver of such conflict of interest by Petitioner. Counsel for Petitioner contended that the trial judge did not know of the conflict of interest until after the trial as there is nothing in the trial record about it except the Amended Motion for a New Trial, which, of course, was filed after the trial was concluded. The following colloquy between the Federal district judge and counsel for the Petitioner shows this to be true:

"THE COURT: Can you state whether or not there is anything in the record that would shed any light on the Court's knowledge of this thing, other than what is in the transcript of the Motion for New Trial?

MR. REDINGTON: Other than what is in the Motion for New Trial, which indicates an absence of knowledge, nothing else appeared.

THE COURT: From reading that, I got the definite impression that that was the first the judge had heard of all this. It was brought up by the Motion for New Trial."

Attorney Proctor testified on direct examination that his conflict of interest was discussed by him and the trial judge and Petitioner in open court before the trial began and that Petitioner insisted on having him as his lawyer and the trial judge approved the arrangement. However, on cross-examination Proctor admitted that it happened so long ago he could be mistaken and that the discussion may have occurred after the conclusion of the trial, although he did not think so. On this evidence, the district court made a finding of fact that the trial judge was unaware of the conflict of interest until the hearing on the Amended Motion for New Trial. Of course, there could not have been a valid waiver by Petitioner of the conflict of interest without the participation and approval of the trial judge before the trial began. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).

Based on the foregoing evidence, the district court made findings of fact and conclusions of law that a conflict of interest existed; that the trial judge was unaware of it until after the trial had been concluded; and that the Petitioner was denied effective assistance of counsel by the conflict of interest of his counsel and that he had not waived this right. The district court granted the writ on March 29, 1977, in his Findings and Conclusions, and by Final Judgment of May 9, 1977, ordered the Petitioner released from custody unless the State of Texas elects to retry him within ninety days. The Respondent filed a notice of appeal to this court on April 25, 1977, and on the same day filed a motion to stay the order of this court, which the district court granted on May 9, 1977, pending the appeal to this court.

On June 6, 1977, the Respondent filed a Motion For Relief From Judgment pursuant to Rule 60(b), Federal Rules of Civil Procedure. ¹ The Respondent relied on the provisions of Rule 60(b)(1), 60(b)(3), and 60(b)(6), which are set forth in full below in the footnote. Attached to the Motion is a Certificate of Trial Judge (Wallace C. Moore) pursuant to 28 U.S.C., § 2245. ² This certificate by Judge ...