Hollines v. Estelle
| Decision Date | 08 March 1983 |
| Docket Number | Civ. A. No. W-81-CA-21. |
| Parties | Eugene HOLLINES, Petitioner, v. W.J. ESTELLE, et al., Respondents. |
| Court | U.S. District Court — Western District of Texas |
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William P. Allison, Lynch, Zimmerman, White & Allison, Austin, Tex., for petitioner.
Joe Foy, Jr., Asst. Atty. Gen., Austin, Tex., for respondents.
Before the Court is a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, § 2254. This cause was originally referred to the Honorable Roy Rutland, United States Magistrate, for findings and recommendations pursuant to Title 28, United States Code, § 636(b)(1)(B) and Local Rules 1(e) and 4(b) of Appendix C of the Order of the Judges of the Western District of Texas revised March 1, 1982, as pertaining to the powers and duties of United States Magistrates. Subsequently, by Order of this Court dated February 10, 1982, the reference of this cause to the above-named United States Magistrate was vacated in order that all further proceedings herein might be held directly by this Court. After an evidentiary hearing on Petitioner's claims held by this Court on April 28, 1982, and a thorough review of the Petition for Writ of Habeas Corpus, Respondent's combined Motion to Dismiss and Original Answer, and Post-Trial Brief, Petitioner's Memorandum of Law, and the records of state proceedings on file in this cause, the Court now enters the following Memorandum Opinion and Order DENYING Respondent's Motion to Dismiss and GRANTING IN PART AND DENYING IN PART Petitioner's Application for Writ of Habeas Corpus.
Petitioner is in the custody of the Texas Department of Corrections pursuant to the judgment and sentence of the 54th Judicial District Court of McLennan County, Texas, entered after Petitioner's jury trial in that Court on December 9, 1975, finding Petitioner guilty of possession of heroin and being an habitual criminal. Petitioner was sentenced to life imprisonment in the custody of the Texas Department of Corrections. The conviction was appealed, by counsel appointed for Petitioner, and thereafter affirmed by the Texas Court of Criminal Appeals in a per curiam opinion dated September 20, 1978.
The writ presently before the Court is Petitioner's seventh application for post-conviction writ of habeas corpus. The Petitioner's first state writ of habeas corpus petition was filed in the Texas Court of Criminal Appeals in March, 1976, and denied on March 31, 1976, because the direct appeal was still pending. A second state writ petition was filed with the Court of Criminal Appeals in August, 1976, and was denied on October 6, 1976, for the same reason. Subsequent to the affirmation of Petitioner's conviction on direct appeal, a third state writ petition was filed with the Court of Criminal Appeals in February, 1979, and was denied on April 18, 1979, without a hearing, upon the findings of the trial court.
Petitioner's fourth petition for writ of habeas corpus, filed in this Court on May 11, 1979, was later dismissed without prejudice on May 8, 1980, by Judge Philip Sanders, United States Magistrate, in order that Petitioner have the opportunity to fully exhaust his state remedies as to all of his claims.
Petitioner's fifth state writ was filed in the 54th Judicial District Court for McLennan County, Texas on October 6, 1980, and was thereafter denied, upon written order, on November 10, 1980.
The sixth and final state writ petition was filed by Petitioner in late fall, 1980, in the Court of Criminal Appeals and denied, without written opinion, on November 26, 1980.
In the Petition for Writ of Habeas Corpus pursuant to 28 United States Code § 2254 presently before this Court, Petitioner raises four grounds for relief: (1) that he was denied the right to a speedy trial because the prosecution deliberately waited eight months after his arrest to procure an indictment, causing him to be tried twelve months after arrest, knowing that in the intervening period police car activity logs material to his defense would be routinely destroyed; (2) that he was denied the right to due process of law because the prosecution deliberately waited eight months after his arrest to procure an indictment knowing that in the intervening period police car activity logs material to his defense would be routinely destroyed and unavailable at trial; (3) that there was insufficient admissible evidence adduced at trial to support his narcotics possession conviction; and (4) that he was denied the right to effective assistance of counsel owing to the incompetent defense mounted in his behalf at trial by his retained attorney.
The Court finds that Petitioner has presented to the courts of the State of Texas each of the four grounds listed above. While the Court is unable to determine the precise ruling by a state court on each of the grounds asserted because Petitioner's state applications for writ of habeas corpus were denied without any discussion on the merits, the Court concludes that Petitioner has exhausted his state remedies as required by Title 28, United States Code, § 2254(b) and (c).
As to grounds one, two and three, Petitioner's Petition for Writ of Habeas Corpus raises no issues of fact that have not already been established before the state courts with the result that this Court finds that, as to these three grounds, no further evidentiary hearings are required to supplement the record established in the state courts. U.S. v. Duzac, 622 F.2d 911, 916 (5th Cir.1980); 28 U.S.C., § 2254(d); Rule 8, Rules Governing Section 2254 Cases in the United States District Courts. Petitioner's fourth ground with respect to ineffective assistance of counsel did raise issues of fact which were not fully and fairly established before the state courts and this Court therefore deemed it necessary to hold an evidentiary hearing on this matter on April 28, 1982. Guice v. Fortenberry, 661 F.2d 496, 500 (5th Cir.1981); 28 United States Code § 2254(d); Rule 8, Rules Governing Section 2254 Cases in the United States District Courts. All relevant facts having been established, this Court finds that it is now in a position to properly rule on Petitioner's Application for Writ of Habeas Corpus without further evidentiary hearings.
As his first ground for relief Petitioner asserts that his 6th Amendment right to a speedy trial was violated because the prosecution deliberately waited eight months to seek an indictment against him allegedly in order to allow the destruction of Daily Accounting Log sheets (DEA records), i.e., the records establishing daily custody and activity of all tactical police cars and containing evidence relevant to Petitioner's defense, which were routinely destroyed every six months pursuant to the administrative policy of the Waco Police Department. The Court finds that Petitioner's challenge on this ground is without merit.
In his writ application, Petitioner urges that the relevant period to consider for the determination of the alleged violation of his right to speedy trial is the 12 month period between his arrest on November 27, 1974 on a charge of illegal possession of heroin, and his trial for illegal possession of heroin, on November 28, 1975, pursuant to an indictment for the same offense issued on July 29, 1975.
The Supreme Court has established that the Sixth Amendment right to a speedy trial is enforceable against the States by virtue of the Fourteenth Amendment. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). The Sixth Amendment right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time since that interest is protected primarily by the Due Process Clause and by statutes of limitation. United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). For the purposes of applying the requisite speedy trial test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the date of arrest constitutes the initiation of prosecution or accusation, commencing the period relevant to the right to a speedy trial, regardless of whether a formal indictment has been returned. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Greer, 655 F.2d 51 (5th Cir.1981); United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976) cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). The 12 month time period which Petitioner urges as the relevant period for the determination of any Sixth Amendment violation is, then, correct under the rule set forth in the authority cited above.
In Barker, supra, the Supreme Court established a balancing test which analyzes speedy trial claims on an ad hoc basis employing a criteria composed of four factors: (1) Length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker, supra; Jamerson v. Estelle, 666 F.2d 241 (5th Cir.1982); Greer, supra; Avalos, supra. The threshold consideration in deciding whether the test applies is whether the delay is of sufficient length to be deemed "presumptively prejudicial;" if it is not, the other factors need not be reached and Petitioner's speedy trial claim must be denied. Barker, supra; Jamerson, supra; Greer, supra; United States v. Walters, 591 F.2d 1195 (5th Cir.1979), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1980). While Barker, supra, established no specific guidelines by which to evaluate the constitutionality of a delay, the Fifth Circuit in recent cases under § 2254 has...
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...and a matter of common practice ..., that a district court also has the power to withdraw a § 636(b) reference."); cf. Hollines v. Estelle, 569 F.Supp. 146, 150 (W.D.Tex.) (discussing earlier vacation of § 636(b) reference), aff'd, 714 F.2d 136 (5th The foregoing discussion of the district ......