Breen v. Beto
Decision Date | 28 January 1965 |
Docket Number | No. 21518.,21518. |
Citation | 341 F.2d 96 |
Parties | John J. BREEN, Appellant v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
John J. Breen, pro se.
Sam R. Wilson, Asst. Atty. Gen., Waggoner Carr, Atty. Gen., of Texas, Houston, Tex., for appellee.
Before HUTCHESON, GEWIN and BELL, Circuit Judges.
This is an appeal from an order1 denying appellant's application for release on habeas corpus from custody under a judgment of a state court. We approve and adopt the District Judge's conclusion and the reasoning on which it is based.
Here, in addition to the contention argued by petitioner and rejected by the district judge, that he was denied due process of law in the state court because of discriminatory use by state authorities in enforcing the Texas Habitual Offenders Statute,2 appellant argues that he was deprived of due process in that: under the procedure of the state court in enforcing that section, the jury, to whom was submitted the question of his guilt or innocence, was informed by the indictment that he had been formerly convicted of prior offenses against the laws of the State of Texas; and that the statement in the indictment, under which he was tried as required by the Texas Habitual Offenders Act, supra, that he was a former offender, was prejudicial and illegally deprived him of his constitutional right to a fair and impartial jury by getting before the jury the fact of his former offenses, whereas, he was constitutionally entitled to be tried without having such prejudicial matter put before the jury.
In support of his contention, appellant cites and strongly relies on Lane v. Warden, 320 F.2d 179 (4th Cir. 1963). This court has never so held, and under the controlling Texas statutes and the authorities we are not disposed to adopt or follow the cited opinion. On the contrary, we are of the firm view that that case was not well decided and that the correct view of the law is otherwise.3
In the case of Crocker v. State of Texas, 385 S.W.2d 392 in the Court of Criminal Appeals, the appellant, convicted under the Habitual Offenders Act, made the same contention in the state court that is made here.4 The view of the court in that case has been universally affirmed and reaffirmed. It was early held in Smith v. State of Alabama, 124 U.S. 465, 8 S.Ct. 564, 31 L.Ed. 508, and has since been maintained consistently and many times repeated that a state may freely legislate with respect to the rights, duties and liabilities of citizens, subject only to the requirement that their laws must not violate federal constitutional provisions and principle. But this does not mean that the procedure provided by the state can be rejected as unconstitutional merely because a judge or judges find the procedure objectionable.5
2 Art. 63, Vernon's Annotated Penal Code of the State of Texas, read as follows:
"Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.
3 Cf. footnote 4 in Lane v. Warden, supra, and footnote 8 in Michelson v. United States, 335 U.S. 469 at 475, 69 S.Ct. 213, 93 L.Ed. 168.
4 There the court said:
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Spencer v. State of Texas Bell v. State of Texas Reed v. Beto 8212 70
...held a comparable Maryland recidivist practice unconstitutional in all cases. Lane v. Warden, 320 F.2d 179. The Fifth Circuit in Breen v. Beto, 341 F.2d 96, and again in the Reed case before us today, 343 F.2d 723, and the Eighth Circuit in Wolfe v. Nash, 313 F.2d 393, have held such proced......
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United States v. Warden of Green Haven State Prison, 65 Civ. 2417.
...J. sitting by designation and joining in the opinion), cert. granted, 382 U.S. 1025, 86 S.Ct. 649, 15 L.Ed.2d 539 (1966); Breen v. Beto, 341 F.2d 96 (5th Cir. 1965). The Ninth Circuit has declined to comment on Lane, Pike v. Dickson, 323 F.2d 856, 860 n. 5 (9th Cir. 1963), cert. denied, 377......
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Henderson v. Warden, Maryland Penitentiary, Civ. No. 16338.
...because of (a) Judge Chesnut's opposite view, D.Md., 207 F. Supp. 780 (1962), (b) the opposite views of the Fifth Circuit in Breen v. Beto, 341 F.2d 96 (1965) (see also Reed v. Beto, 5 Cir., 343 F.2d 723 (1965)), (c) the doubt expressed by the Ninth Circuit in Pike v. Dickson, 323 F.2d 856,......
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Ex parte Breen
...Court for the Southern District of Texas in In re Breen's Petition, 237 F.Supp. 575; and before the 5th Circuit Court of Appeals in Breen v. Beto, 341 F.2d 96, in each of which petitioner presented his petition pro se, though his testimony at the hearing before Judge Matthews was to the eff......