Harris v. Estelle

• Citation: 487 F.2d 1293
• Decision Date: 11 January 1974
• Docket Number: No. 73-1718.,73-1718.
• Parties: Henry Deleiano HARRIS, pETITIONER-aPPELLANT, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

487 F.2d 1293 (1974)

Henry Deleiano HARRIS, pETITIONER-aPPELLANT, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.

No. 73-1718.

United States Court of Appeals, Fifth Circuit.

January 11, 1974.

John B. Stigall, Jr., Dallas, Tex., (Court-appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., Thomas M. Pollan, Roland Daniel Green, III, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The district court dismissed the habeas corpus petition of Texas prisoner Henry Harris on the merits as to every claim he advanced. On this appeal Harris urges essentially seven errors in his trial proceedings: (1) failure to afford him a preliminary hearing; (2) denial of a jury shuffle;¹ (3) impermissibly suggestive line-up; (4) his trial counsel's erroneous stipulation to the validity of constitutionally invalid prior convictions; (5) systematic exclusion of blacks from the petit jury; (6) deprivation of his Sixth Amendment right to counsel at certain preliminary stages of the proceedings and his right to effective assistance of counsel at his trial; and (7) a cumulative effect argument, i. e., even if each claim is insufficient standing alone, the cumulative weight of these straws break the "constitutional camel's back." Grounds (1) and (2) do not present constitutional deficits even if valid, therefore we affirm the district court's dismissal of those claims. Since grounds (3), (4), (5) and (7) have not been presented squarely to the Texas courts, we vacate the district court's dismissal on the merits as to these issues and remand with instructions to dismiss them without prejudice for failure to exhaust state remedies. After consideration of issue (6), which has been exhausted, we affirm the district court's dismissal on the merits.

Unfortunately, the procedural odyssey of this already lengthy case has not reached its ending. It started when Harris was convicted in Dallas, Texas for felony robbery and sentenced to seventy years imprisonment. His conviction was affirmed by the Texas Court of Criminal Appeals. Harris v. Texas, 425 S.W.2d 652 (1968). He then petitioned for a writ of habeas corpus in the Criminal District Court of Dallas County, Texas, arguing that his conviction was invalid because he was denied a preliminary hearing, his trial counsel was ineffective, and alibi testimony was suppressed.² After an evidentiary hearing his petition was denied, and this denial was affirmed by the Texas Court of Criminal Appeals. Subsequently, Harris filed a federal habeas petition which included a claim that blacks had been excluded from the jury which convicted him. From the record in the district court it appears that action on this petition was suspended while Harris presented the new claim to the Texas courts by means of a second state habeas petition. This second state petition was dismissed without an evidentiary hearing and another affirmance by the Texas Court of Criminal Appeals ensued. It was then that Harris filed the amended and supplemental federal habeas corpus petition which resulted in the judgment before us now. The district court denied all relief. The preliminary hearing and jury shuffle questions were dismissed as not presenting the requisite constitutional issues, and other claims, including those not specifically presented to the Texas courts, were all dismissed on the merits. The district court reasoned that the record developed at trial and at the first state habeas hearing furnished a sufficient factual basis upon which the invalidity of these claims could be determined.

Preliminary Hearing and Jury Shuffle

The district court was correct in holding that the denial of Harris' request for a preliminary hearing does not present a constitutional issue. Even if Harris' statement that he requested such a hearing is taken as true, it was not a procedure required by state law, Trussell v. State, 414 S.W.2d 466 (Tex.Cr.App. 1967), and this ends the matter, since there is no federal constitutional right to a preliminary hearing. See Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913); Richardson v. Texas, 425 F.2d 1372 (5th Cir.1970), and Hackworth v. Beto, 434 F.2d 852 (5th Cir.1970).³ Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) does not compel a different conclusion. The import of Coleman is that once a state provides a preliminary hearing, counsel must be afforded at that hearing, not that such a hearing is a minimum requirement of Fourteenth Amendment due process. See United States v. Farries, 459 F.2d 1057, 1062 (3d Cir.1972).

Similarly, the trial judge's denial of Harris' motion to remix the names of all jurors called for service at the term so as to alter the order in which they would be tendered to the parties in this case⁴ apparently denied him an option available under Texas law, but this denial presents no question rising to constitutional dimensions. There was no allegation that the venire was selected on a racially discriminatory basis. Therefore, shuffling the order of names on the venire could do no more than replace one potential juror with another whose constitutional impartiality toward the defendant was presumably the same. Harris did not allege that the trial judge used racial criteria in overruling his motion. There is no constitutional right to have members of one's own race on the petit jury, Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) and Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Exhaustion of State Remedies — Procedure

In order to determine the proper disposition of Harris' remaining claims, we must confront a threshold procedural issue: what is a district court's duty under 28 U.S.C. § 2254(b) when some issues raised in a habeas petition have been exhausted in the state courts and other issues have not been? Abstract principles of comity and this court's announced policy against "piecemeal litigation", see Hargrett v. Wainwright, 474 F.2d 987 (5th Cir.1973), dictate that absent extraordinary circumstances a federal court should not act⁵ on a habeas petition until the courts of the confining state have had an opportunity to rule on all the issues in the petition. However, these considerations are not the only relevant ones. For instance, a petition with a valid, exhausted claim that is factually ripe for decision and a non-exhausted claim presents a conflict between comity and the petitioner's constitutional right to be free of illegal restraint. Then too, a petition in which an exhausted claim that the court determines is wholly frivolous is joined with a non-exhausted claim presents a conflict between economy of judicial energy and comity, since it would be sound husbandry to dispose of the frivolous claim while it is then before the court and require exhaustion on the other, rather than dismissing both only to have the frivolous claim appear for reanalysis at a later date. Of course, other policies may weight the scale of comity; a non-exhausted claim can be so related to an exhausted one that a state court decision on the former may of necessity involve a reconsideration of the latter, thus indicating both should go back. See, e.g., United States ex rel. Ferguson v. Deegan, 323 F. Supp. 42, fn. 3 (S.D.N.Y. 1971). The cases in this circuit on the question are conflicting in result and none reason the basis for their differing dispositions. Some cases indicate that a federal district judge should dismiss the entire petition without prejudice. See Hargrett v. Wainwright, supra; Green v. Beto, 460 F.2d 322 (5th Cir.1972); Johnson v. Wainwright, 453 F.2d 385 (5th Cir.1971); Garrett v. Texas, 435 F.2d 709 (5th Cir.1970); Harrison v. Wainwright, 424 F.2d 633 (5th Cir.1970); Wheeler v. Beto, 407 F.2d 816 (5th Cir.1969). However, we have also affirmed cases which dismissed the non-exhausted claims without prejudice and denied relief on the merits on the exhausted claims. See Hill v. Dutton, 440 F.2d 34 (5th Cir.1971); McDonald v. Wainwright, 466 F.2d 1136 (5th Cir.1972); See Lake v. Hale, 440 F.2d 1191 (5th Cir.1971); and Chisholm v. Wainwright, 427 F.2d 1138 (5th Cir.1970). In fact, it has previously been indicated that this issue-by-issue approach is the preferred one. See Lee v. Wiman, 280 F.2d 257, 264 (5th Cir.1960). To complete the spectrum, this court has affirmed a district court's decision dismissing a non-exhausted claim and granting relief on the merits of an exhausted claim. See Moye v. Georgia, 330 F. Supp. 290 (N.D. Ga. 1971), aff'd, Moye v. Highsmith, 460 F.2d 1388 (5th Cir.1972).

In the absence of any single clear rule in this circuit, we are free to dispose of the instant case in a manner which best reconciles the conflicting policy interests which it presents. The district judge here has reviewed and dismissed, on its merits, the fully exhausted claim that Harris was denied counsel at critical stages of the proceedings and that his appointed attorney rendered him ineffective assistance in his defense. Judicial economy outweights any comity inspired reason for us to vacate the decision of this claim on this appeal. However, we cannot affirm the federal habeas court's decision on the merits of the remainder of the claims that have not yet been presented to the Texas courts.

The Non-Exhausted Claims

Lineup — Since United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) were decided subsequent to the line-up challenged in the instant case,⁶ and since the line-up involved was pre-indictment, see Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), Harris was not entitled to counsel at the line-up as a per se matter of constitutional right. Thus, his claim must stand or fall on whether the line-up was so impermissibly suggestive as to...