Asper v. Estelle

• Decision Date: 11 July 1983
• Docket Number: No. 82-1623,82-1623
• Citation: 709 F.2d 356
• Parties: Louis ASPER a/k/a Louis Esper, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 356

709 F.2d 356

Louis ASPER a/k/a Louis Esper, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 82-1623

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 11, 1983.

Michael R. Gibson, El Paso, Tex., for petitioner-appellant.

Nancy M. Simonson, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GEE, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

The petitioner Asper, a Texas state prisoner, applies for federal habeas relief. 28 U.S.C. Sec. 2254. Asper appeals from the district court's dismissal of his complaint that he was unconstitutionally denied an effective appeal of his conviction solely because of his indigency. We affirm, finding no constitutional error in the state trial judge's refusal under the circumstances to credit Asper's self-serving but uncontradicted testimony as to his own indigency, in denying him leave to appeal in forma pauperis.

Asper's federal habeas petition alleges that he is confined without due process because the State refused his leave to appeal in forma pauperis. He was convicted in state court of conspiracy to commit armed robbery and sentenced to fifteen years' imprisonment. He appealed, urging as sole ground the sufficiency of the evidence; for review of his contention, a transcript was required. The state trial court, after an indigency hearing, refused to permit him to appeal in forma pauperis, so his appeal on the merits of his conviction was submitted without transcript (or attorney) and thus resulted in a routine affirmance.

The state appellate court also reviewed the denial of Asper's motion to have transcript, counsel, and appeal furnished without cost. It found--one judge dissenting--that the state trial judge had properly found that Asper was not an indigent for purposes of appeal and was thus not entitled to the state's furnishing him a transcript and waiving costs of appeal.

Having exhausted state remedies, Asper applies for federal habeas relief. The essential basis of his complaint is that his due process rights to appeal despite his indigency were denied, because the state trial court refused to accept his uncontradicted testimony that, at the time of appeal, he had assets only of some $200 and an old automobile worth some $400 and was thus qualified as an indigent. He states that he thus met his burden to prove his indigency.

In denying the federal habeas claim, the federal magistrate, in a report and recommendation adopted by the district court, pointed out that in his view of the state transcript some $3000 of funds Asper had in his possession at the time the prosecution commenced were not accounted for, and that his assertion of Fifth Amendment grounds against revealing certain financial details entitled the state trial judge to discount his testimony. Cf., United States v. Schmitz, 525 F.2d 793, 795 (9th Cir.1975).

In federal habeas review of a claim by a person in state custody, the state's determination on the merits, after a full hearing, "shall be presumed to be correct", in the absence of certain specified deficiencies not here present, unless "the Federal Court on a consideration of ... the record as a whole concludes that such factual determination is not fairly supported by the record." 28 U.S.C. Sec. 2254(d). The factual findings of the state court are entitled to a "high measure of deference". Marshall v. Lonberger, --- U.S. ----, ----, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983) (citing Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). This "requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked 'even fair support' in the record." Id....