Amaya v. Beto, 28634 Summary Calendar.

Decision Date30 March 1970
Docket NumberNo. 28634 Summary Calendar.,28634 Summary Calendar.
Citation424 F.2d 363
PartiesHector Salvidar AMAYA, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Robert H. Hoy, Jr., El Paso, Tex., for appellant.

Crawford C. Martin, Atty. Gen., State of Tex., Allo B. Crow, Asst. Atty. Gen., Austin, Tex., W. Barton Boling, Dist. Atty., Jamie C. Boyd, Dist. Atty., El Paso, Tex., Nola White, First Asst. Atty. Gen., Pat Bailey, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for appellee.

Before THORNBERRY, CLARK and INGRAHAM, Circuit Judges.

PER CURIAM:

Hector Salvidar Amaya appeals from the denial of his application for the writ of habeas corpus. Judge Suttle denied the writ in an unreported opinion constituting findings of fact and conclusions of law pursuant to Fed.R. Civ.P. 52(a). We find the district judge's decision exhaustive of the issues, and his findings and conclusions clearly correct. We therefore affirm,1 and append his opinion hereto.

It is appropriate to point out that the relative lengthiness of Judge Suttle's opinion is not indicative of a hassle with complex issues. It only reflects the district court's commendable thoroughness in according the appellant the full benefit of the independent federal fact-finding procedure, within the true spirit of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); and 28 U.S.C. § 2254 (as amended, 1966), 28 U.S.C.A. § 2254 (Supp.1967).

The district judge held two hearings, the transcripts of which total 109 pages. The appellant, represented by appointed counsel, was permitted broad latitude to prove his allegations, and testified on his own behalf at both hearings. The court held the following contentions to be without merit; and to his conclusions we add a few observations:

(1) The appellant maintains that the state courts were required to find him guilty of the burglary he allegedly committed while on probation before it could revoke his probation.

The district court noted that conviction of an offense is neither a Texas nor a constitutional prerequisite to revocation. We emphasize that that principle, as enunciated in Seymore v. Beto, 383 F.2d 384 (5th Cir. 1967), is still viable, and is applicable even though the charge upon which the revocation was based was subsequently dismissed, as was the case in Seymore. The appellant's guilt of the offense charged need not be proved beyond a reasonable doubt before probation may properly be revoked, United States v. Nagelberg, 413 F.2d 708, 709 (2nd Cir. 1969), because "a revocation proceeding is not the trial of a criminal case." United States v. Sutton, 421 F.2d 1394 (5th Cir., Feb. 2, 1970); Broadus v. United States, 317 F.2d 212 (5th Cir.), cert. denied, 375 U.S. 829, 84 S.Ct. 74, 11 L.Ed.2d 61 (1963). Revocation is a matter within the discretion of the trial court, and in both the federal and Texas courts, the trial judge's determination will not be disturbed unless there was a clear abuse of discretion. United States v. Knight, 413 F.2d 445 (5th Cir. 1969); Seymore v. Beto, supra. The credibility of the probationer's testimony at the revocation hearing is a proper element for the trial judge to consider. United States v. Nagelberg, supra. Viewing solely the credibility of the appellant's testimony at his revocation hearing, we agree with the district court's conclusion that an abuse of discretion was not shown. The trial judge could properly disbelieve the appellant's assertion that he did not commit the crime — it is extremely doubtful that one would enter a closed bakery shop between 1:00 and 2:00 a. m. to purchase baked goods.

Since we hold that the appellant was not entitled to a trial on the burglary charge before his probation could be revoked, his further contention that he was denied the appointment of counsel to represent him at that "trial" is utterly without merit.

(2) The appellant's only other substantive allegation is that his attorney failed to appeal the order revoking his probation.

The district court treated this allegation in the same manner as an allegation of the denial of the right to appeal from an original conviction is normally treated. In this particularly favorable light to the appellant, the court concluded that the contention was without merit, and we agree.

We would add, however, first, that our reading of the transcripts of the hearings in the district court clearly shows that appellant's counsel was retained. The ambiguity pointed out in footnote 7, page 3, of Judge Suttle's opinion should not be interpreted to mean that the standards of Beto v. Martin, 396 F.2d 432, 434 (5th Cir. 1968) do not apply to this case. See district court opinion at 6. The effectiveness of counsel's representation of the appellant need not, therefore, "pass muster under constitutional standards relating to indigents." Goforth v. Dutton, 409 F.2d 651, 653 (5th Cir. 1969). But even if it did, the record supports the district court's conclusion that the appellant was not denied effective assistance of counsel, tested under the standards set forth in Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967).

Secondly, it is questionable whether the appellant has standing to challenge the effectiveness of his attorney's assistance at the revocation proceeding, because it is unclear whether a probationer has the right to counsel at that type of proceeding at all. In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Supreme Court held that one has the right to counsel at such a proceeding, but apparently only if a substantial right might be affected. In Mempa, the sentence was deferred and was not imposed until the revocation proceeding. In this case, the appellant was sentenced prior to being placed on probation. The only effect of the revocation proceeding was to order the commencement of the earlier-designated sentence. In cases similar to this one, several courts have construed Mempa narrowly and have concluded that there is no right to counsel. Shaw v. Henderson, 303 F.Supp. 183 (E.D.La.1969); Splawn v. Fitzharris, 297 F.Supp. 44 (C.D.Cal.1969); United States ex rel. Bishop v. Brierly, 288 F.Supp. 401 (E.D. Pa.1968); Holder v. United States, 285 F.Supp. 380 (E.D.Tex.1968); Sammons v. United States, 285 F.Supp. 100 (S.D.Tex.1968); United States v. Hartsell, 277 F.Supp. 993 (E.D.Tenn. 1967); see also, Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968).

But on similar facts also distinguishable from Mempa, the Fourth and Sixth Circuits have held that the right to counsel at a revocation hearing is absolute. Hewett v. State, 415 F.2d 1316 (1969); Ashworth v. United States, 391 F.2d 245 (6th Cir. 1968).

Our court has not considered this question, and we need not reach it here — the appellant in this case was represented by counsel, and his counsel's assistance was effective, even tested under the standards relating to criminal defendants. We noted the foregoing only to indicate that since constitutional standards pertaining to revocation proceedings are, to date, less stringent in some areas, see part (1) supra, they may also be less stringent in this particular right-to-counsel area.

Having concluded that the district court properly denied the appellant's petition for the writ of habeas corpus, we

Affirm.

APPENDIX

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

HECTOR SALDIVAR AMAYA versus CIV-68-28-EP

DR. GEORGE J. BETO, Director, Texas Department of Corrections

ORDER AND MEMORANDUM OF DECISION DENYING PETITION FOR HABEAS CORPUS

The prior proceedings in this habeas corpus case are evident from the orders heretofore entered by the Court, copies of which are attached hereto. Having considered these proceedings, the files and records of the case, the testimony and evidence adduced at the hearings, and the written and oral comments of counsel, the Court finds and rules as follows:

Petitioner is in the custody of the State of Texas, or, more immediately, respondent. In 1960 petitioner was convicted on his plea of guilty in the 34th Judicial District Court of El Paso County, Texas, of possession of Marihuana.1 On April 12, 1960, sentence was imposed at imprisonment for not less than two nor more than eight years. Execution of the sentence was suspended, however, and petitioner was placed on adult probation for the maximum period of the sentence imposed.2

In July, 1960, petitioner was arrested for auto theft. He pled not guilty, was indicted, but never tried, the case being apparently dismissed when another person was convicted of the crime. Petitioner claims that during these proceedings the State judge told him that if he pled not guilty and was acquitted by the jury, the State could not revoke his probation. No motion to revoke was filed at that time.

On February 20, 1961, petitioner was arrested by federal authorities and was indicted for entering the United States without having registered as a prior narcotics offender.3 On March 17, 1961, he pled guilty, and on April 5, 1961 sentence was imposed at two years imprisonment.4 Again, execution of the sentence was suspended, and petitioner was placed on federal probation. No action was taken by the State authorities as a result of this conviction, and petitioner remained on State probation as well. On August 7, 1962, however, the United States Probation Officer moved the Court to issue a warrant and revoke petitioner's federal probation. After a hearing on September 26, 1962, petitioner's federal probation was revoked, and he was required to serve the two year sentence previously imposed. Still no action was taken by the State authorities with regard to its 1960 probation order.

In December, 1964, after serving the above sentence, petitioner was arrested by federal authorities in Albuquerque, New Mexico, and...

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