Henley v. Ellis

• Citation: 228 F.2d 657
• Decision Date: 06 January 1956
• Docket Number: No. 15695.,15695.
• Parties: John HENLEY, Appellant, v. O. B. ELLIS, General Manager, Texas Prison System, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

228 F.2d 657 (1956)

John HENLEY, Appellant, v. O. B. ELLIS, General Manager, Texas Prison System, Appellee.

No. 15695.

United States Court of Appeals Fifth Circuit.

January 6, 1956.

John Henley, in pro. per.

John Ben Shepperd, Atty. Gen. of Texas, John A. Wild, Asst. Atty. Gen., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

When this habeas corpus proceeding was here on former appeal, we held that:

"in some way, by the granting of the writ, the issuance of a show cause order, or otherwise, the petitioner should have the opportunity of developing a record upon which his rights may be intelligently and certainly determined and reviewed." Henley v. Moore, 5 Cir., 218 F.2d 589, 590.

On remand, the district court declined to grant the writ or a show cause order, but did develop a record that permits of intelligent review. The district judge, on further appeal, having refused to issue a certificate of probable cause under 28 U.S.C.A. § 2253, another panel of this Court issued such a certificate and the case was resubmitted on the record and briefs.

The indictment charged that:

"John Henly on the 17th day of April, A.D.1930, * * * did * * * by * * * assault and by violence, and by putting * * * Andres Montemoyor in fear of life and bodily injury, fraudulently and against the will of * * * Andres Montemoyor, take from the person and possession of * * * Andres Montemoyor one gun of the value of ten dollars, the same being the property of * * * Andres Montemoyor, with the intent then and there to deprive * * * Andres Montemoyor of the value of the same, and to appropriate the same to the use of him, the said John Henly."

The jury returned a verdict finding the defendant guilty as charged and assessing his punishment at fifty years in the penitentiary. A conditional pardon issued by the Governor of Texas on May 4, 1934, but later revoked because of appellant's subsequent misconduct, recites:

"* * * District Judge Langston G. King, who presided at the trial of this case, and District Attorney O\'Brien Stevens who prosecuted this case, on November 7, 1932, wrote to Governor Sterling, urgently requesting a parole for said John Henly, stating among other things, as follows:

"`As will be indicated by that letter (June 29, 1932) and the records, young Henly was convicted in October, 1930, after he had been in jail for some time for the offense of robbery by assault. Two other persons were jointly indicted with him. There was a severance granted and young Henly went to trial first and the jury returned a verdict of guilty and assessed a penalty of fifty years in the penitentiary. Some unusual robberies had happened right at that time or just before that time, and I am sure this naturally influenced the jury\'s verdict somewhat.

"`The facts showed that Henly and his two companions went to a Mexican\'s house, evidently to get whiskey. They made a mistake in the house to which they went, but did create quite a disturbance there, Henly being the leader, Henly had a gun, and finally took the shotgun that belonged to the Mexican, that being the only property they took, and after leaving the house a little piece, threw the gun away. This shows that likely there was no intent to commit the offense of robbery. Later on, the other two defendants were tried and acquitted. Henly has been in jail and in the penitentiary now since some time before October 1930, and for his conduct on that occasion, he surely has received ample punishment, in my opinion.\'"

The Court of Criminal Appeals of Texas affirmed the judgment of conviction saying in part:

"No faults in the procedure have been perceived and none are pointed out by bills of exception or otherwise. The facts heard by the trial court are not brought up for review.

"The point made in the motion for new trial that the verdict is excessive is one that is not ordinarily available upon appeal." Henly v. State, 117 Tex.Cr.R. 228, 36 S.W. 2d 1018.

About nineteen years later¹ appellant filed a petition for habeas corpus in the Criminal District Court No. 2 of Harris County, Texas, alleging that he had been tried and convicted without benefit of counsel, and was incapable of representing himself adequately. See Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 86 L.Ed. 1595; Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 780, 69 S.Ct. 1247, 93 L.Ed. 1686. The said Texas District Court heard the evidence and certified it to the Court of Criminal Appeals of Texas, which refused the application for the writ of habeas corpus, saying in part:

"From the evidence found in the record there was quite a controverted issue as to whether or not appellant was represented by counsel. Honorable Sam Hill, an attorney, who filed a motion for a new trial and appealed the case to this court, as shown in Henly v. State, 117 Tex.Cr.R. 228 36 S.W.2d 1018, was called as a witness. He recognized his handwriting on the pleadings, but had no personal recollection of what occurred. The prosecuting witness in the original trial testified at this hearing that a heavy-set man sat by appellant while he was on trial and that he stood before the jury, after the evidence was in, and talked in favor of Henley.

"As an aggravating circumstance the petition alleges that he had employed counsel through a bondsman but did not know the name of the attorney. He says that when his case was called for trial the attorney failed to appear and that he filed a motion for a continuance until he could procure the services of an attorney. Documentary evidence introduced fails to indicate that such a motion was filed. It was not alleged as a ground for a new trial. Evidence which we consider conclusive on the issue as to whether or not he was represented by an attorney is found in the court\'s judgment dated October 9, 1930, which reads as follows: `This day this cause was called for trial, and the State appeared by her District Attorney, and the Defendant John Henly appeared in person and by Counsel, and both parties announced ready for trial.\'

"The question attempted to be raised at this time could have been presented on appeal but it was not. In consequence of the foregoing it is our conclusion that the evidence fails to sustain the allegation. By this we do not mean to indicate that the allegations, within themselves, are sufficient, if proven, to warrant an order releasing relator from custody. Since the grounds alleged were not proven it is not necessary to discuss the question of law." Ex parte Henley, 154 Tex.Cr.R. 558, 229 S.W.2d 810, 811.

Appellant states in his brief on his own behalf:

"Petitioner filed a second petition for habeas corpus in the Highest Court in the State invoking (art. 171, C.C.P. of Texas). Submitted affidavits of 3 new witnesses that was unavailable at the time of the first proceeding this petition was entered under cause No. 74 there was an opinion wrote but not entered, upon motion for rehearing the cause was adjudicated."

On December 4, 1953, the following order appears to have been entered by the Texas Court of Criminal Appeals:

"Ex Parte

"No. 74

"John Henley — Original Application

"Order

"On Motion for Rehearing

"Petitioner has misunderstood our original order herein. The motion for new trial in our Cause No. 14,209 (Henley v. State 117 Tex.Cr.R. 228, 36 S.W.2d 1018) raised the question of lack of representation upon the trial. In rendering our opinion we did not discuss this question. We do not, and cannot, write on every question raised upon an appeal, but an affirmance of the judgment is an adjudication of all questions raised.

"The motion for rehearing is overruled.

"Morrison, Judge."

Certiorari was denied by the Supreme Court of the United States on April 26, 1954. Henley v. Moore, 347 U.S. 956, 74 S.Ct. 682, 98 L.Ed. 1101. It appears that in the interim the District Court of the Eastern District of Texas had also denied a petition for habeas corpus filed by appellant, and that appeal from that judgment had been dismissed. 344 U.S. 931, 73 S.Ct. 500, 97 L.Ed. 716. The ground for each petition, so far as appears, has been that appellant was denied due process of law because he was not represented by counsel and was not able adequately to defend himself.

In Brown v. Allen, 344 U.S. 443, 458, 73 S.Ct. 397, 408, 97 L.Ed. 469, the Supreme Court said:

"* * * where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state\'s resolution of the issue. Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029. In other circumstances the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata."

The evidence certified to the Texas Court of Criminal Appeals, and upon which it refused the writ for reasons heretofore quoted, Ex parte Henley, 154 Tex.Cr.R. 558, 229 S.W.2d 810, 811, is copied in the record on this appeal. Five additional affidavits were introduced. Let us examine the evidence as to whether appellant was in fact represented by counsel. John Henley testified:

"I did not have counsel representing me at the actual trial. * * *

"I had talked with Mr. Lang Smith, the bondsman, who had made my bond up until the Grand Jury indictment, and he said he was going to get me an attorney. I was relying on what Mr. Smith told me.

"When I was brought in here to be tried and the State announced ready, I did not announce ready in the case. I asked for a continuance on the grounds that my attorney was not present, and that I wasn\'t legally being represented. * * *

"At the time I was brought into court to be tried in the case where I received fifty years I was under the impression that I had counsel to represent me. I was under that

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