Barnes v. Estelle, 75-2189

• Decision Date: 02 September 1975
• Docket Number: No. 75-2189,75-2189
• Citation: 518 F.2d 182
• Parties: Bobby Darrell BARNES, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 182

518 F.2d 182

Bobby Darrell BARNES, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections Respondent-Appellant.

No. 75-2189

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 2, 1975.

John L. Hill, Atty. Gen., Mark Perlmutter, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Dennis Leight White, Dallas, Tex. (Court-appointed), for petitioner-appellee.

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

Before WISDOM, BELL and CLARK, Circuit Judges:

PER CURIAM:

The district court granted habeas corpus relief to Barnes based upon the introduction at his sentencing of three invalid misdemeanor convictions. Finding the error harmless, we reverse.

Barnes was convicted in state court of robbery. He received a fifty year sentence, after a hearing at which evidence of the following convictions and sentences was introduced without objection : 1) Burglary, three years; 2) Felony theft, three years; 3) Robbery by assault, five year probation, probation revoked; 4) Two charges of driving while intoxicated, first offense, 120 days; second offense, one year; 5) Driving after his license had been suspended, 15 days; 6) Two charges of carrying a prohibited weapon, 60 days and $100 fine, respectively, and joy riding, 60 days. Barnes was represented by counsel in the cases resulting in convictions 1) through 3) and in the second case involving driving while intoxicated. Counsel was waived in the case in which he was convicted of driving after his license had been suspended. On the basis that Barnes had not been represented by counsel in the cases involving carrying a prohibited weapon and joy riding, the district court granted habeas corpus relief ordering the State of Texas to release or resentence Barnes.

Resentencing is required whenever a sentence was based "in part upon misinformation of a constitutional magnitude." United States v. Tucker,404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972). However, in Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975), we held in a case similar to the one at bar that the introduction of an invalid conviction may be harmless error. The sentencing judge in the instant case certified to the district court that the facts of the case itself and the four valid felony convictions were sufficient to have caused him to impose the fifty year sentence without considering any of the invalid misdemeanor convictions and that the same sentence would be reimposed if he were required to resentence without their consideration. The maximum sentence possible in Barnes' case was life imprisonment. Considering the relatively insignificant nature of the invalid misdemeanors and the number and gravity of the valid offenses, the record amply supported the sentencing judge's assertion that his imposition of the fifty year sentence was not, and in no way would be, affected by the introduction of the improper sentences. The error was harmless beyond a reasonable doubt. Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975). See United States v. Rollerson, 491 F.2d 1209 (5th Cir. 1974).

Barnes also contends for the first time on this appeal that his indictment was defective. We cannot decide this claim because he did not present it either to the court below or to the ...