Johnson v. Estelle, 82-2033

Decision Date06 May 1983
Docket NumberNo. 82-2033,82-2033
Citation704 F.2d 232
PartiesWilliam JOHNSON, Jr., Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Kenneth Schubb, University of Texas School of Law, Austin, Tex., for petitioner-appellant.

Barbara J. Williams, Iris J. Jones, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, GEE and JOLLY, Circuit Judges.

GEE, Circuit Judge:

William Johnson, Jr. was convicted of murder with malice aforethought in a Texas state court on January 24, 1973, and sentenced to life imprisonment. On appeal from the federal district court's denial of habeas corpus relief, 28 U.S.C. Sec. 2254 (1976), Johnson contends that (1) there was a fatal variance between the indictment and proof adduced at trial, (2) the introduction of stipulated evidence denied him a fair trial, (3) he was incompetent at the time of trial, (4) he received ineffective assistance of counsel and (5) the district court erred in its adoption of the recommendation and findings of the United States Magistrate. We note at the outset that while the record contains the filings in the proceedings that took place in the trial court, it does not include a statement of facts or a transcript of the trial proceedings. 1 Accordingly, our analysis proceeds under the assumption that the factual allegations set forth in Johnson's brief are a true and correct summarization of those developed at trial. See Pruitt v. Hutto, 574 F.2d 956, 957-58 (8th Cir.1978). In part we affirm the district court's judgment; however, in provisionally accepting Johnson's factual allegations as true, we believe that there is sufficient evidence to warrant an inquiry on the claim of ineffective assistance of counsel. We therefore reverse and remand for an evidentiary hearing on that claim.

I. FACTS AND PROCEDURAL HISTORY

While its significance is a matter of controversy, it is undisputed that on November 15, 1972, Johnson shot Carlyn Ann Venters dead in the Harris County, Texas Courthouse. At the time of this incident Venters was on trial for allegedly shooting Johnson; a shooting that resulted in Johnson's being paralyzed from the waist down. Johnson was charged with murder with malice aforethought and the trial court, after finding him to be indigent, appointed legal counsel.

Johnson initially entered a plea of not guilty to the charge of killing Venters. On the advice of counsel this plea was withdrawn and a plea of nolo contendere entered. Presumably after a presentation of the evidence a jury convicted Johnson of the charge and the trial court sentenced him to an enhanced term of life imprisonment. On March 19, 1973, Johnson filed notice of appeal to the Texas Court of Criminal Appeals. On the advice of counsel this notice was withdrawn on June 22, 1973. In consequence, no appeal has ever been perfected.

Between 1975 and 1980 Johnson, in forma pauperis, filed four applications for a writ of habeas corpus with the Texas Court of Criminal Appeals. 2 That court denied all four applications without written order. After exhaustion of state remedies Johnson filed a writ of habeas corpus in the United States District Court for the Southern District of Texas on October 15, 1980. The United States Magistrate recommended the petition be dismissed for failure to state a claim upon which federal habeas corpus relief could be granted. The district court adopted the magistrate's recommendation and ordered the petition dismissed. Johnson then filed a notice of appeal to this court and requested that the district court grant a certificate of probable cause. The district court adopted the magistrate's recommendation that the certificate be denied. Because we believed that Johnson's petition raised colorable issues of constitutional violations we granted his application for a certificate of probable cause. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

II. THE INDICTMENT

Johnson's first contention is that there was a fatal variance between the facts alleged in the indictment and the proof adduced at trial. Specifically, he states that the indictment alleged that, with malice aforethought, he murdered "Carol Ann Venters" when the proof at trial showed that the victim was really named "Carlyn Ann Venters." We believe this argument to be without merit.

When a defendant pleads nolo contendere he waives all non-jurisdictional defects in the proceedings against him. Williamson v. Alabama, 441 F.2d 549 (5th Cir.1971); Williams v. Wainwright, 604 F.2d 404 (5th Cir.1979). The misspelling of a victim's name in an indictment charging murder is unquestionably a non-jurisdictional defect. In consequence, Johnson's plea of nolo contendere is a functional bar to this argument's success. Moreover, because Johnson did not object to this alleged defect at trial and because he has neither alleged nor shown that his defense was prejudiced we are not obliged to consider this argument in a habeas proceeding. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, because we remand this case to the district court for an evidentiary hearing on Johnson's claim of ineffective assistance of counsel, we do not rest our decision on the above points. For even if we assume the existence of a variance, Johnson has failed to show, by a preponderance of the evidence, that such a variance was fatal. Murphy v. Beto, 416 F.2d 98, 100 (5th Cir.1969).

In a federal court, habeas corpus can be invoked with respect to indictments only where they are "so fatally defective" that under no circumstances could a valid conviction result from facts provable under the indictment. Johnson v. Beto, 383 F.2d 197, 198 (5th Cir.1968). Such a determination can be made only by looking to the law of the state where the indictment was issued. Under Texas law a defendant bears the burden of proving a defective indictment. Johnson has failed in his burden, by not showing that (1) "Carol" is not a contraction, derivation, abbreviation, or corruption of "Carlyn," Evans v. State, 509 S.W.2d 371 (Tex.Cr.App.1974); (2) Venters was not known by both names, Murphy v. State, 424 S.W.2d 231 (Tex.Cr.App.1968); or (3) the two names are not idem sonans, 3 Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976). Most importantly Johnson in no manner demonstrated that the alleged variance prejudiced his defense. Forder v. State, 456 S.W.2d 378 (Tex.Cr.App.1970). He knew whom he killed.

III. THE STIPULATED EVIDENCE

Johnson's second contention is that the introduction of stipulated erroneous evidence denied him a fair and impartial trial. Here he charges that the cause number of a previous conviction, which was used for enhancement, was incorrect.

The documentary of the trial proceedings reveals that a stipulation of evidence was entered into the record at the sentencing portion of Johnson's trial in cause number 186,603. In this stipulation Johnson admitted that he was the same person who was convicted of the offense of aggravated assault on January 22, 1969, and also of the offense of seriously threatening life on December 11, 1967. This stipulation is signed by both Johnson and his attorney. No objection to the allegedly incorrect cause number appears in the record; nor does Johnson allege that his counsel objected to its entry. Since Johnson pleaded nolo contendere to the substantive offense, signed the stipulation in open court while accompanied by counsel, and waited until his fourth state writ of habeas corpus, seven years after his conviction, to raise this issue, we could find that Johnson waived this non-jurisdictional defect in the proceedings against him. See Williams v. Wainwright, 604 F.2d 404 (5th Cir.1979). Because of the ultimate disposition of this case, however, we decline to do so.

Even assuming that Johnson did not waive this claim, and further assuming that the stipulation of evidence did contain an error, we remain to be convinced that Johnson has carried his burden of showing that such an error violated his constitutional rights. In the usual case involving the admission of prejudicial evidence, habeas corpus relief will be granted only if the error was "material in the sense of a crucial, critical, highly significant factor." Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.1976), quoting Corpus v. Beto, 469 F.2d 953 (5th Cir.1972); Bryson v. Alabama, 634 F.2d 862 (5th Cir.1981). On the totality of circumstances we cannot say that an incorrect cause number prejudiced Johnson's defense.

IV. EVIDENTIARY HEARINGS

Johnson next contends that the district court erred in not granting an evidentiary hearing on his claims of incompetency to stand trial and ineffective assistance of counsel. 4 We address these issues sequentially.

A. Incompetency

The gravamen of this argument is that recent paraplegia, two subsequent suicide attempts, an irrational homicide, a history of mental illness and the taking of Valium, as well as another unnamed drug, compels an evidentiary hearing to determine whether Johnson was competent at the time of trial. We do not agree. The constitutional standard of competency to stand trial, applicable to the states by virtue of the Fourteenth Amendment's guarantee of due process, was enunciated by the Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960):

[T]he test must be whether he [the petitioner] has sufficient present ability to consult with his lawyer with reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him. Id. at 403, 80 S.Ct. at 789.

Under this standard the sole consideration is whether a habeas petitioner had the present mental ability meaningfully to participate in his defense. Thus our analysis must go beyond the bald...

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