Foster v. Beto, 27306.
| Decision Date | 08 July 1969 |
| Docket Number | No. 27306.,27306. |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | Jimmy A. FOSTER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. |
Fred Lohmeyer, Dallas, Tex., for petitioner-appellant.
Crawford C. Martin, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Hawthorne Phillips, Executive Asst. Atty. Gen., W. V. Geppert, Staff Legal Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before WISDOM and CARSWELL, Circuit Judges and ROBERTS, District Judge.
In 1961, Jimmy Foster was indicted in the Criminal District Court of Dallas County, Texas, on one charge of robbery by firearms and two charges of robbery by assault. Foster pleaded not guilty to the charge of robbery by firearms. The jury found him guilty and sentenced him to thirty-five years imprisonment in the state penitentiary. Foster then pleaded guilty to the two charges of robbery by assault. The court sentenced him to fifty-years imprisonment on each charge. All three sentences were to run concurrently. Foster did not appeal from these convictions and sentences.
In 1967, Foster applied for a writ of habeas corpus in the Criminal District Court of Dallas County, Texas. The court held a plenary hearing and entered findings of fact and conclusions of law denying Foster's application. The Court of Criminal Appeals of Texas affirmed the Criminal District Court's decision without written opinion. The district court below denied Foster's application for a writ of habeas corpus, holding that he had received a fair hearing in the state court and that the state court's findings were supported by the record.
Foster presents two arguments in this appeal. (1) He was denied effective assistance of counsel in his state court convictions. (2) He did not knowingly and intelligently waive his ten-day trial preparation period. Foster contends that he was denied effective counsel since his lawyer was appointed only two days before the trial began. As evidence of his ineffectiveness, Foster points to his thirty-five year sentence.
In considering the question of effective assistance of counsel, this court formulated the following standard:
It has been specifically held that a charge of ineffective assistance by appointed counsel should not be sustained unless it very clearly appears well grounded. * * * It has been held that lack of effective representation by counsel means representation so lacking in competence that it becomes the duty of the court or the prosecution to observe and correct it. * * * It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience...
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Herring v. Estelle
...461 F.2d 530; United States v. Zarzour, 5th Cir. 1970, 432 F.2d 1; United States v. Long, 5th Cir. 1969, 419 F.2d 91; Foster v. Beto, 5th Cir. 1969, 412 F.2d 892; Mosley v. Smith, 5th Cir. 1968, 404 F.2d 346; White v. McHan, 5th Cir. 1967, 386 F.2d 817; Quarles v. Dutton, 5th Cir. 1967, 379......
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Vasquez v. State
...that he was denied the effective assistance of counsel at his trial. This claim is not supported by the record. See Foster v. Beto, 412 F.2d 892 (5th Cir. 1969); Campbell v. United States, 401 F.2d 894 (5th Cir. 1968); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965); Brooks v. State, 473 S.W......
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Cloud v. State of Louisiana, Civ. A. No. 12794.
...reduce the state court proceedings to a farce, a mockery of justice, or a sham. King v. Beto, 429 F.2d 485 (5 Cir. 1970); Foster v. Beto, 412 F.2d 892 (5 Cir. 1969); Brown v. Beto, 377 F.2d 950 (5 Cir. 1967); Williams v. Beto, 354 F.2d 698 (5 Cir. 1965). And, as stated in MacKenna v. Ellis,......
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Thompson v. State
...or without adequate opportunity for conference and presentation. See Loper v. Beto, 440 F.2d 934 (5th Cir. 1971); Foster v. Beto, 412 F.2d 892 (5th Cir. 1969); MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960). We conclude that appellant's ninth ground of error is without Appellant, in his fi......