Herring v. Estelle, No. 73-2672.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BELL, THORNBERRY and DYER, Circuit
• Citation: 491 F.2d 125
• Parties: Wilbert HERRING, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
• Docket Number: No. 73-2672.
• Decision Date: 16 April 1974

491 F.2d 125 (1974)

Wilbert HERRING, Petitioner-Appellant,
v.
W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.

No. 73-2672.

United States Court of Appeals, Fifth Circuit.

March 15, 1974.

Rehearing and Rehearing Denied April 16, 1974.

491 F.2d 126

William T. Armstrong, Staff Counsel for Inmates, Weldon, Tex., Harry H. Walsh, Huntsville, Tex., James H. Randals, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant.

Thomas M. Pollan, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before BELL, THORNBERRY and DYER, Circuit Judges.

Rehearing and Rehearing Denied April 16, 1974.

THORNBERRY, Circuit Judge:

In this § 2253 habeas corpus appeal, Herring contends that he unknowingly and involuntarily pled guilty to a robbery charge because his appointed counsel was too poorly prepared to give him effective assistance in deciding how to plead. We agree and order that the writ be granted.

This case began with a May 30, 1962, jailbreak at the Tom Green County (Texas) Jail. When the jailer entered a cell to aid a bleeding inmate, three inmates rushed forward, grabbed his keys, beat him and escaped, leaving the keys in the jail's back door. The State charged Herring, one of the escapees, with robbery by assault on the theory that he had taken the jailer's keys by force. The trial court appointed Herring's lawyer on the day set for trial, July 17, 1962. He pled guilty the same day.

Herring argues that his poorly prepared appointed counsel failed to provide information essential to a knowing and voluntary plea. At the time of his plea, Texas law provided a maximum prison term of two years for aggravated assault¹ and five years for escape,² a total of seven years. But the State instead charged him with robbery by assault,³ which carries a maximum penalty of life imprisonment. Herring contends that any reasonably competent lawyer would have known that he had not committed robbery because the Texas Court of Criminal Appeals has ruled that robbery requires a taking with the intent to keep the booty permanently, not temporarily. That the escapees left the keys in the jailhouse door is conclusive evidence that they took the keys for temporary use only. But Herring's lawyer failed to tell him that his taking the keys probably could not be construed as robbery. Consequently Herring entered

491 F.2d 127

a plea of guilty in exchange for a twenty-five-year sentence. When he realized that his escape probably should have brought a maximum term of seven years, the bargain lost its luster and he sought habeas corpus relief

I.

The Sixth and Fourteenth Amendments gave Herring the right to effective assistance of counsel. This circuit set its standard for determining whether counsel has provided constitutionally satisfactory services in MacKenna v. Ellis:

We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.

MacKenna v. Ellis, 5th Cir. 1960, 280 F. 2d 592, 599, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. Since 1960 we have applied the "reasonably effective assistance" standard many times.⁴

In 1965, however, a panel of this circuit seemed to adopt a different standard. In Williams v. Beto the court said:

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 of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Citations omitted.

Williams v. Beto, 5th Cir. 1965, 354 F.2d 698, 704. For several years following 1965, Williams' "farce-mockery" language appeared in our opinions with some frequency.⁵ But a close reading of Williams v. Beto reveals that that opinion did not intend to adopt the farcemockery test in lieu of the reasonably effective assistance standard. The passage quoted above, after stating the general rule, cited eleven cases from other circuits as support; it cited no cases from this circuit. Thus the panel was saying that the farce-mockery test was the general rule in other circuits but not in ours. In the next paragraph the panel said:

This court has considered lack of effective counsel cases before and has laid down standards which we now reaffirm and again call to the attention of the Bar of this Circuit. We have not hesitated to grant habeas corpus relief when justified. Cf. Pineda v. Bailey, 5 Cir., 340 F.2d 162 (1965); Johnson v. United States, 8 Cir., 329 F.2d 600 (1964); MacKenna v. Ellis, 5 Cir., 280 F.2d 592 (1960).

Williams v. Beto, supra, 354 F.2d at 705.

The Johnson case cited above had nothing to do with assistance of counsel; there the sole issue was sufficiency of the evidence. MacKenna, of course, instituted the reasonably effective assistance test, and Pineda applied that test. Therefore the paragraph quoted above

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reaffirmed the MacKenna standard for effective assistance of counsel. Williams did not replace MacKenna's reasonably effective assistance standard with a farce-mockery test

The two tests, moreover, can be reconciled. The governing standard is reasonably effective assistance. One method of determining whether counsel has rendered reasonably effective assistance is to ask whether the proceedings were a farce or mockery. The farce-mockery test is but one criterion for determining if an accused has received the constitutionally required minimum representation (reasonably effective assistance). See Bendelow v. United States, 5th Cir. 1969, 418 F.2d 42, 50, cert. denied, 400 U.S. 967, 91 S.Ct. 379, 27 L.Ed.2d 387. One may receive ineffective assistance of counsel even though the proceedings have not been a farce or mockery. United States v. Edwards, 5th Cir. 1974, 488 F.2d 1154 at pp. 1164, 1165 1974. Other circuits may adhere solely to the farce-mockery test, but we do not. Pennington v. Beto, 5th Cir. 1971, 437 F.2d 1281, 1285-1286; Brown v. Beto, 5th Cir. 1967, 377 F.2d 950, 957-958. Our standard is reasonably effective assistance.

Reasonably effective assistance is an easier standard to meet in the context of a guilty plea than in a trial, but counsel still must render competent service. See Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. It is the lawyer's duty to ascertain if the plea is entered voluntarily and knowingly. Lamb v. Beto, 5th Cir. 1970, 423 F.2d 85, 87, cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84. See Walker v. Caldwell, 5th Cir. 1973...