Gotcher v. Beto, 31117.
| Decision Date | 21 June 1971 |
| Docket Number | No. 31117.,31117. |
| Citation | 444 F.2d 696 |
| Parties | Roy Edward GOTCHER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Garland P. Andrews, Dallas, Tex., for petitioner-appellant.
Crawford C. Martin, Atty. Gen., Roland Daniel Green, III, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for appellee.
Before AINSWORTH, INGRAHAM and RONEY, Circuit Judges.
This appeal is taken from the denial without an evidentiary hearing of a petition for the writ of habeas corpus filed by petitioner-appellant Roy Edward Gotcher.
Petitioner entered pleas of guilty in four felony cases in the Criminal District Court No. 4 of Dallas County, Texas, being three cases of robbery by assault and one case of breaking and entering a motor vehicle. He was sentenced to 35 years on each robbery conviction and 3 years on the breaking and entering conviction, the sentences to run concurrently. No appeal was taken.
Petitioner first prosecuted his petition for the writ of habeas corpus in the state court in which he was convicted pursuant to Art. 11.07, Texas Code of Criminal Procedure. After a full plenary hearing, the state court denied his petition.
Petitioner then filed his petition for the writ of habeas corpus in the court below, alleging substantially the same grounds. The district court denied the petition upon the record made in the state court hearing.
This appeal raises the following issues:
1. Whether the plea of guilty was involuntary;
2. Whether appellant was denied the effective assistance of counsel;
3. Whether the court below erred in denying relief without a hearing on the basis of the state court evidentiary hearing.
We will first dispose of Issue No. 3. The practice in federal courts of adjudicating petitions for the writ of habeas corpus upon the record of testimony made in a state court proceeding is an authorized and proper procedure if the state court proceeding meets the standards promulgated by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1962). We hold that the state court proceeding meets such standards and that the district court acted within its authority in relying and acting upon the record of testimony made in the state court habeas corpus proceeding.
As to Issues Nos. 1 and 2, we are in agreement with the findings of fact and thoroughly well reasoned conclusions of the district court appended hereto.
The judgment of the district court is affirmed.
MEMORANDUM ORDER DENYING WRIT OF HABEAS CORPUS
The petitioner in his application for a writ of Habeas Corpus alleges that his detention pursuant to several convictions in the state court is illegal because his guilty pleas were coerced and involuntary.
On September 22, 1966 the petitioner pled guilty to the following cases in Criminal District Court No. 4 of Dallas County, Texas: C-66-2825-KL, breaking and entering a motor vehicle; C-66-3379-KL, C-66-3380-KL, and C-66-3381-KL, all robbery. The petitioner was sentenced to thirty-five years for each robbery conviction and three years for the breaking and entering of a motor vehicle. All sentences were concurrent. No appeal was taken.
On August 22, 1968, the petitioner filed a writ of Habeas Corpus in Criminal District Court No. 4 of Dallas County, Texas, pursuant to Tex.Code Crim.P. Ann. Art. 11.07 (1966). In that writ, the petitioner raised substantially all of the issues he now raises. On April 25, 1969, an evidentiary hearing was held in Criminal District Court No. 4 of Dallas County, Texas. Findings of Fact and Conclusions of Law were submitted to the Court of Criminal Appeals by the trial judge in which he found that the petitioner's confinement was in all respects legal.
On March 26, 1969, a writ of Habeas Corpus was filed by the petitioner in this court. The case was abated until such time as the Texas Court of Criminal Appeals acted upon the writ in the state court. On May 12, 1970, the Court of Criminal Appeals denied the application for the writ without written order on the findings of the trial court.
In this application for the writ the petitioner alleges that he was deprived of the guiding hand of counsel before and during interrogation by the arresting officers; that the arresting officers beat him in an attempt to obtain a confession; that he was deprived of counsel during plea bargaining, and was deprived of the effective assistance of counsel during the trial; that he was deprived of counsel of his own choosing; and that the cumulative impact of the totality of these circumstances resulted in non-voluntary pleas of guilty.
The evidentiary hearing held by the state court has revealed the following facts. In June, 1966, the petitioner was arrested for breaking and entering a motor vehicle. He was released on bond and a Mr. Joe McNicholas, a local attorney, was a second surety on the bond. Mr. McNicholas was also noted as the attorney of record on the Court's docket sheet. He testified that he had discussed representing the petitioner on that charge and that he set a fee which included both the cost of the bond and his fee for the case. He stated that the petitioner had begun paying him for the bond but never paid anything on the professional fee. About July 15, 1966, Mr. McNicholas went into the hospital and remainded there until the end of September. On August 17, 1966, the petitioner's case was passed at his request. On August 16, 1966, the petitioner was arrested on the robbery charges and put back in jail.
Some time between August 16, 1966 and September 22, 1966, he was visited in the jail on two occasions by a representative of the District Attorney's office. The substance of their conversations was that if the petitioner would plead guilty the District Attorney's office would recommend concurrent thirty-five year sentences. An attorney, Mr. Paul Underkofler, was appointed to represent the petitioner on September 22, 1966, the day he went to trial and pled guilty.
Petitioner alleges that his pleas of guilty were involuntary. He states that once he decided to plead guilty and accept the preferred sentences the deal had already been made and the "cards were stacked against him." He also states that his appointed attorney told him to plead guilty, so he complied. These facts, he alleges, also amount to a denial of the effective assistance of counsel during plea bargaining and at his trial. In addition, petitioner states that he was deprived of the counsel of his choice, Mr. Joe McNicholas, and was also initially without counsel when police officers interrogated him and beat him in their efforts to secure a confession. The totality of all of these circumstances resulted in an involuntary plea of guilty, he submits.
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