Carter v. Estelle, No. 74-3401

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 537 F.2d 197
• Docket Number: No. 74-3401
• Decision Date: 19 August 1976
• Parties: Eugene CARTER, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.

Page 197

537 F.2d 197 Eugene CARTER, Petitioner-Appellant,
v.
W. J. ESTELLE, Director, Texas Department of Corrections,
Respondent-Appellee. No. 74-3401. United States Court of Appeals,
Fifth Circuit. Aug. 19, 1976.

Page 198

William B. Clarkson, Houston, Tex. (court appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., Merrill Finnell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GEWIN, DYER and ADAMS ^*, Circuit Judges.

PER CURIAM:

Appellant, Eugene Carter, was tried by a jury, convicted of theft from the person and given an enhanced life sentence under the Texas habitual offender act then in effect. ¹ The conviction was affirmed on direct appeal, Carter v. State, 408 S.W.2d 507 (Tex.Crim.App.1966), and habeas corpus relief was later denied by the Texas state courts. Subsequently, he petitioned the federal district court for similar relief. His petition attacked his conviction and confinement on the following four grounds: (1) evidence of his prior convictions was erroneously admitted during his bifurcated trial to determine guilt or innocence; (2) an illegally obtained confession was used against him; (3) he was denied effective assistance of counsel; ² and (4) he was denied due process of law when tried before the jury in jail attire. We affirm the district court's dismissal of appellant's petition.

The first two grounds for relief were thoroughly considered and properly disposed of on direct appeal. As noted in appellant's brief, the first issue, which concerns evidence of his prior convictions, has been decided adversely to his position by the Supreme Court in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

With regard to the legality of the confession, we look to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). ³ There the Court said:

We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied "the Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made obligatory upon the States by the Fourteenth Amendment," (citation omitted) and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.

Id. at 490-91, 84 S.Ct. at 1765, 12 L.Ed.2d at 986 (emphasis added).

The record before us evidences a factual dispute over whether the above-emphasized requirement of the Escobedo decision is present in this case. The dispute concerns

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