Huffman v. Beto

• Citation: 260 F. Supp. 63
• Decision Date: 28 October 1966
• Docket Number: Civ. A. No. 65-H-450.
• Parties: Arlice J. HUFFMAN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

260 F. Supp. 63

Arlice J. HUFFMAN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 65-H-450.

United States District Court S. D. Texas, Houston Division.

October 28, 1966.

John H. Holloway, Houston, Tex., (court-appointed), for petitioner.

Lonny F. Zwiener, Asst. Atty. Gen. of Texas, Austin, Tex., for respondent.

NOEL, District Judge.

Memorandum and Order:

Petitioner, presently confined in the Ellis Unit of the Texas Department of Corrections, has filed a petition for writ of habeas corpus, 28 U.S.C. § 2242.

The petitioner was convicted in the District Court of Caldwell County, Texas, in 1951 of burglary, and was sentenced as a habitual offender to life imprisonment. Vernon's Ann.Tex.Penal Code art. 63. The predicate for the sentence as a habitual offender was a conviction in Montgomery County, Texas, in 1943 for robbery by assault, and another conviction in Montgomery County in 1948 for felony theft.

In his petition for a writ of habeas corpus, Huffman complains that he: (1) was convicted in 1943 without the assistance of counsel, (2) was convicted in 1948 without the assistance of counsel, and (3) pleaded guilty in 1951 upon the assurance of counsel that he would receive a twelve-year sentence. The petitioner alleges facts which entitle him to an evidentiary hearing in accordance with Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The Court assigned counsel to the petitioner and ordered that a hearing be held on August 23, 1966, to explore the merits of petitioner's allegations.

At the onset of the hearing, the petitioner informed the Court that the complaint numbered (1) above was being withdrawn, as it then appeared he was represented by counsel when he was convicted in 1943.

At the hearing, the petitioner testified at length and exhibits were introduced into evidence by the petitioner and by the respondent. As to the complaint numbered (3) above, the following facts were developed:

Huffman was arrested in April of 1951 for burglary in Caldwell County. He was subsequently transferred to Austin, Texas, after an attempted jailbreak in which petitioner was implicated, but was returned to Caldwell County to face trial. When the petitioner appeared before the Court, District Judge J. Harris Gardner asked if he would like to have an attorney appointed, and Huffman indicated that he would. Weldon M. Fielder, a practicing attorney in Lockhart, Texas, was appointed to represent the petitioner. After conferring with Mr. Fielder, the petitioner signed a waiver of trial by jury and, after a reading of the indictment, entered a plea of guilty. Huffman contends that Mr. Fielder assured him he would receive a twelve-year sentence if he plead guilty and he further asserts that it was because of this assurance that he entered the plea. Upon entering the plea of guilty, however, Judge Gardner sentenced petitioner to life imprisonment as a habitual criminal. Huffman testified that the possible sentence was discussed in the presence of the District Attorney, J. Lee Dittert, but that Mr. Dittert made no statement relative to the plea and conferred no promise as to the sentence he might receive. In relation to petitioner's claim, his attorney, Weldon Fielder, states in his affidavit: "I certainly was unaware of any such promise." Likewise, by affidavit Mr. Dittert stated that he could not remember a promise being made and was confident none was made.

Huffman testified that he would not have entered the guilty plea if he had known he would receive life imprisonment. Although he concedes that the indictment was read, the petitioner argues that he did not know he was being charged as a habitual offender. After receiving the sentence, Huffman stated that he "got mad and raised the devil," but he did not tell the Judge about his expectation of receiving a twelve-year sentence.

Article 63 of the Texas Penal Code states: "Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary." As petitioner had previously been convicted of two felony offenses less than capital, the sentence Judge Gardner imposed upon Huffman was a mandatory life imprisonment.

Petitioner argues that it would have been illogical for him to have entered a guilty plea if he were going to receive life imprisonment, for he could have done no worse with a plea of not guilty and a jury trial. Acts frequently appear irrational in retrospect; however, the record is clear that the plea was entered and that the petitioner had representation of counsel. Only the petitioner knows the reasons that precipitated his plea, but if he felt he was guilty and that a jury would find him to be guilty, and if he wished to begin serving his sentence without further delay and further confinement in the county jail, his act was not so illogical.

After hearing the facts and receiving the evidence pertinent to petitioner's third complaint, it is my opinion that the petitioner has failed to present an allegation which entitles him to relief under the United States Constitution.

Petitioner's remaining complaint is that he was denied his right to counsel in 1948, when he was convicted of felony theft in Montgomery County, Texas. The petitioner entered a plea of guilty to the indictment and was sentenced to a term of five years imprisonment. The record of the trial does not indicate that counsel was or was not present, nor does it indicate whether or not the Court informed Huffman of his right to counsel and offered to appoint counsel if he so desired. The State acknowledges that the petitioner was not represented by counsel, but argues that he waived his right to counsel.

The law is well settled that a defendant in a federal or state criminal proceeding has a constitutional right to be represented by counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is equally settled that counsel need not be forced upon the defendant and that he is free to waive the right to the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thus, it does not follow that a defendant has been denied a constitutional right merely because he was not represented by an attorney at his trial.

When waiver of a constitutional right is in issue, the courts ultimately resort to Johnson v. Zerbst, supra, for guidance. In Johnson, the Supreme Court preserved the following standards for courts faced with waiver problems:

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

Id. at 464, 58 S.Ct. at 1023. See also Palumbo v. State of New Jersey, 334 F.2d 524, 532 (3d Cir. 1964).

Subsequent to Johnson v. Zerbst, a number of cases arose wherein the trial courts had denied a writ of habeas corpus because the record was silent (did not show counsel was not offered) and because the petitioners had appeared without counsel, presuming waiver of counsel—even though the petitioners had asserted that they had been denied the right to counsel and that the trial judge had failed to advise them of the right to have counsel appointed. See Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The Supreme Court reiterated the language of Johnson that waiver is not to be presumed from a silent record. Ibid. The Court, wishing to avoid future misunderstanding, made its position clear: "The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Id. at 516, 82 S.Ct. at 890.

Judgments of state courts and state proceedings carry a presumption of regularity and are not to be lightly set aside on collateral attack. United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Bates v. Meadows, 358 F.2d 674 (6th Cir. 1966). The petitioner in a habeas corpus application, therefore, has the burden of proving that he did not competently and intelligently waive a constitutional right which he asserts was denied him in the state proceeding. Moore v. State of Michigan, 335 U.S. 155, 161-162, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); Johnson v. Zerbst, 304 U.S. at 469, 58 S.Ct. 1019, 82 L.Ed. 1461; Welch v. Beto, 355 F.2d 1016, 1020 (5th Cir. 1966); Palumbo v. State of New Jersey, 334 F.2d 524, 533 (3d Cir. 1964). As the Supreme Court has stated: "If * * * the District Court finds from all of the evidence that petitioner has sustained the burden of proof resting upon him and that he did not competently and intelligently waive his right to counsel * * * he will * * * be entitled to have his petition granted. If petitioner fails to sustain this burden, he is not entitled to the writ." 304 U.S. at 469, 58 S.Ct. at 1025.

The courts are in disagreement as to the weight of the burden which the petitioner carries. It has been argued by some courts that the petitioner must prove by a preponderance of the evidence that he was denied a constitutional right, Palumbo v. State of New Jersey, 334 F.2d 524, 533 (3d Cir. 1964); Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633 (D.C.Cir. 1942); and by other courts, that he must show clear and convincing evidence of such a denial, State of Nebraska v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (1966), cert. denied, 87 S.Ct. 85 (Oct. 11, 1966). The general rule is that the petitioner has the burden of proving by a preponderance of the evidence that there has been a violation of his constitutional rights. Moore v. State of Michigan, supra; Paige v. Ross, 257 F.Supp. 27 (E.D.N.C.1966). The courts, however, will indulge every...