Brown v. Beto, 23821.

Decision Date12 May 1967
Docket NumberNo. 23821.,23821.
PartiesNathaniel BROWN, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Nathaniel Brown pro se.

Gilbert J. Pena, Asst. Atty. Gen., Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for appellee Dr. George J. Beto.

Before RIVES and WISDOM, Circuit Judges, and CONNALLY, District Judge.

WISDOM, Circuit Judge:

This habeas proceeding involves (1) the prisoner's challenge to his commitment under two sentences when, if either is valid, he would not be entitled to immediate release; (2) the validity of a plea of guilty that apparently resulted from a plea agreement between the prisoner and the prosecutor; (3) a general charge that the prisoner's attorney was incompetent. We affirm the district court's dismissal of the petition for habeas corpus.

I.

In August 1960 in the District Court of Dallas County, Texas, the petitioner, Nathaniel Brown, was charged in two indictments with the offense of robbery by firearms. The offense carries a possible death penalty. Vernon's Penal Code, Art. 1408. The court appointed counsel to represent Brown. Brown went to trial in No. 1768, was found guilty by the jury, and was sentenced to 25 years imprisonment. Several weeks later, in the other case, No. 1767, the state moved to strike the firearms count of the indictment so that Brown was then charged only with robbery by assault, an offense carrying a term of five years to life imprisonment. He pleaded guilty. The court imposed a sentence of thirty-five years on this charge to run concurrently with the other sentence of twenty-five years. Brown took no appeal from either of the convictions or sentences.

In August 1965 Brown filed an application for writ of habeas corpus in the Southern District of Texas, Houston Division. The district court appointed Mr. Alvin R. Owsley, Jr., as counsel to represent Brown. After a two-day evidentiary hearing, the district court found that Brown's testimony in regard to his confession was incredible; that he was not denied effective assistance of counsel; and that the plea of guilty was voluntarily entered. The court denied the petition. The district judge thanked Mr. Owsley for his services to the prisoner and to the court and relieved him of any further obligation except that of filing a notice of appeal. Brown, in proper person, appeals in forma pauperis from the judgment below.

The petitioner's two-page handwritten brief on appeal does not clearly articulate the basis for his attack on the two convictions. To understand his contentions, therefore, we turn to the transcript of the hearings. His attorney, in his opening statement to the court attacked both convictions on the following grounds: (1) Brown was convicted twice as a result of a coerced confession; (2) had no counsel at the time the confession was allegedly extorted; and (3) did not have the effective assistance of counsel. The third contention is subdivided into (a) the lack of effective assistance of counsel during his trial in Cause No. 1768 and (b) the lack of effective assistance of counsel during his guilty plea. Neither Brown nor his attorney specifically contended that the guilty plea was the result of bargaining but it is apparent that this contention was at the heart of the argument that the plea was not voluntary. The Assistant Attorney General representing the state at the habeas hearing brought the issue into the open:

"I think that we can safely assume, Your Honor that Nathaniel Brown, who was charged with two indictments of robbery by firearms, which carries the death penalty, knew that he could get the death penalty. He was tried once by a jury, and the jury gave him 25 years. He must have known that if he was tried again he could receive the death penalty.
"I do believe that the Court can assume from that, from the guilty plea, that he thought it best to cop out and not take a chance with the jury again."
II.

The sentence of thirty-five years imposed in Cause No. 1767 runs concurrently with the sentence of twenty-five years in No. 1768. As the law now stands, if the Court should determine that the thirty-five year sentence is constitutionally valid, it would be premature for the Court to determine questions involving the lawfulness of the prisoner's detention in No. 1768. The Supreme Court stated the controlling principle in McNally v. Hill, 1934, 293 U.S. 131, 137, 55 S.Ct. 24, 27, 79 L. Ed. 238:

"There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention and no suggestion of such a use has been found in the commentaries on the English common law."

The Ninth Circuit said in Wilson v. Gray, 1965, 345 F.2d 282, 284: "It is well settled that a federal court may not issue a writ of habeas corpus to set aside an invalid judgment and commitment where the petitioner is also held in custody under a lawful judgment and commitment. * * * In short, the writ of habeas corpus is only available in situations where discharge from custody will result from the granting of relief."

In Lee v. Swope, 9 Cir. 1955, 225 F. 2d 674, the court held that the prisoner in custody under two unexpired sentences was not entitled to habeas corpus to challange only one, since if either is valid he would not be entitled to immediate relief. The court cited Ex parte Melendez, 9 Cir. 1938, 98 F.2d 791; McNealy v. Johnston, 9 Cir. 1938, 100 F.2d 280; Dunlap v. Swope, 9 Cir. 1939, 103 F.2d 19; Demaurez v. Squier, 9 Cir. 1941, 121 F.2d 960; Graham v. Squier, 9 Cir. 1944, 145 F.2d 348; McDonald v. Johnston, 9 Cir. 1945, 149 F.2d 768; Oddo v. Swope, 9 Cir. 1951, 193 F.2d 492; Woollomes v. Heinze, 9 Cir. 1952, 198 F.2d 577. See also Wells v. People of the State of California, 9 Cir. 1965, 352 F.2d 439. There a prisoner was convicted of possessing a weapon in prison. The term was fixed at life. While serving this sentence he was convicted of assaulting a guard. Under the California Penal Code, because he was under a life commitment, the death penalty was assessed (later commuted to life). He attacked the validity of the first conviction, possession of a dangerous weapon. The court would not consider the issues raised in the habeas petition. "The mandate of the United States Supreme Court is clear and forceful, — the writ of habeas corpus may not be used in the federal courts as a means of securing the judicial decision of a question which, even if determined in the prisoner's favor, could not result in his immediate release." 352 F.2d at 443.

The facts in Wells and in the instant case are analogous to the situation in which a prisoner is convicted of the crime of escape while serving an allegedly invalid sentence. He is not entitled to release on a habeas petition. "This sentence (for escape) was not affected by the validity of the sentences being served at the time of the escape, and it had not been served at the time this petition was submitted. Habeas corpus is available only when the prisoner is entitled to immediate release." Crawford v. Taylor, 10 Cir. 1961, 290 F.2d 197, 198.

In Hendrick v. Beto, S.D.Tex. 1965, 253 F.Supp. 994, the prisoner was in custody in six separate causes. He pleaded guilty to the charge of burglary in Cause No. 91265. After trial, he was found guilty as charged, and was sentenced to life imprisonment as an habitual criminal. He pleaded guilty in the other five causes and in each case was sentenced to confinement for not more than ten years. The prisoner (1) attacked the conviction for burglary and as an habitual criminal in Cause No. 91526 on a number of constitutional grounds and (2) made one allegation attacking, jointly, all the convictions in the five causes in which he had pleaded guilty. The district court, citing Lee v. Swope, noted that:

"There is one allegation which attacks, jointly, all the convictions in the five causes in which there was a plea of guilty. If, as the respondent urges, the allegation attacking this group of five convictions is not sustained, then the petition would have to be dismissed as being premature." 253 F.Supp. 994, 995.

The court held that there was no constitutional basis for the attack on the five sentences. In these circumstances:

"The petitioner is being held under five sentences which are not subject to constitutional attack, and the court will not inquire into the validity of petitioner\'s detention under the remaining sentence. This in no way vitiates petitioner\'s right to present constitutional questions concerning the remaining sentence when the time is such that, if the petition for the writ of habeas corpus were granted, petitioner could be released from custody. At the present time petitioner is being held on constitutionally valid sentences. The respondent\'s motion to dismiss is well taken." 253 F.Supp. 994 at 996.

This Court affirmed the district court in a per curiam opinion. 360 F.2d 618 (1966).

We hold, therefore, that if a prisoner is serving two or more sentences, and if the court should determine that one of these is valid, the court should dismiss as premature a habeas attack on any of the other sentences.

The district court in Hendrick, using Occam's razor, decided only one issue: a defendant's right under Texas law to require the state to introduce evidence corroborating a guilty plea "does not rise to Constitutional stature". Similarly, we elect to consider first the validity of the prisoner's conviction upon his plea of guilty in Cause No. 1767 because the issues are fewer and less complex than those in No. 1768. In addition, there is something to be said for first considering the validity of the longer sentence since, if that sentence is valid, a habeas attack on the shorter sentence will never...

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