Jones v. Estelle

• Decision Date: 21 July 1980
• Docket Number: No. 79-3000,79-3000
• Citation: 622 F.2d 124
• Parties: Robert Charles JONES, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 124

622 F.2d 124

Robert Charles JONES, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 79-3000

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 21, 1980.

Judith K. Sinclair, Dallas, Tex. (court-appointed), for petitioner-appellant.

Sam L. Jones, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before TJOFLAT, FRANK M. JOHNSON, Jr., and GARZA, Circuit Judges.

PER CURIAM:

This is an appeal from the district court's denial of a motion filed pursuant to 28 U.S.C. § 2254 for habeas corpus relief from a conviction and sentence imposed on Robert Jones by the Texas state courts.

In 1973 Jones was convicted of robbery by assault. He was sentenced to life imprisonment under the Texas habitual offender statute. Tex. Penal Code Ann. art. 63 (1962) (repealed and recodified as Tex. Penal Code Ann. § 12.42(d)). His conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals in an unpublished per curiam opinion. Jones' subsequent application for state habeas corpus relief was denied by the trial court and this denial was affirmed by the Court of Criminal Appeals.

In his habeas petition filed in federal district court, Jones raised three issues: (1) that the State improperly introduced prior convictions for impeachment purposes which unduly prejudiced his right to a fair trial; (2) that certain prosecutorial remarks were so inflammatory and prejudicial that his trial was rendered fundamentally unfair; and (3) that his retained counsel at both the trial and appellate levels failed to render effective assistance of counsel. These claims are without merit and we affirm the denial of the petition.

Jones first objects to the prosecutor's use of three prior convictions to impeach the "self-defense" testimony proffered by the petitioner at trial. ¹ He contends that two of these convictions, a 1955 conviction for misdemeanor theft and a 1961 conviction for misdemeanor assault, were unconstitutionally obtained because Jones was indigent and unrepresented by counsel when convicted. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Accordingly, Jones argues, they could not properly be used to impeach his testimony. See Potts v. Estelle, 529 F.2d 450, 455 (5th Cir. 1976). Although the jury heard testimony concerning these two convictions, the trial court ordered withdrawal of exhibits concerning the convictions before the jury retired. Jones contends, however, that this evidence was not effectively withdrawn from the consideration of the jury. He further contends that a third conviction in 1969 for possession of a firearm by an ex-convict is void because he was sentenced to less than the statutory minimum.

A total of seven prior convictions was offered and admitted to impeach the petitioner's testimony. These included the three noted above and a 1963 conviction for robbery, a 1965 conviction for felony theft, a 1972 misdemeanor conviction for possession of a firearm, and a 1949 conviction for burglary. In light of these uncontested prior convictions, it is unnecessary to examine the validity of the contested convictions or the effectiveness of the curative instructions. Even if the contested convictions are void, and therefore may not properly be used for impeachment, the prosecution's use of these three convictions was harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Thomas v. Savage, 513 F.2d 536, 538 (5th Cir. 1975), cert. denied, 424 U.S. 944, 96 S.Ct. 1135, 48 L.Ed.2d 189 (1976). The four uncontested convictions included three felonies and three convictions that were more recent than the allegedly void ones. These four convictions thoroughly impeached Jones' credibility and therefore any error in admitting the other convictions was rendered harmless. Cf. Potts v. Estelle, supra at 454-55 (5th Cir. 1976) (error not harmless where nine out of ten convictions may have been void). Moreover, because federal courts do not review a state's failure to adhere to its own sentencing procedures, petitioner's objection to his 1969 felony conviction on the ground that he did not receive the minimum sentence under Texas law does not present a possible basis for habeas corpus relief. See Nichols v. Estelle, 556 F.2d 1330, 1331 (5th Cir. 1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 767 (1978); Willeford v. Estelle, 538 F.2d 1194, 1196 (5th Cir. 1976). ²

Petitioner's second and third grounds for relief pertain to alleged misconduct on the part of the prosecution. As his second ground for relief, Jones contends that prosecutorial remarks during the trial and in closing argument were so inflammatory and prejudicial as to render his trial fundamentally unfair under due process. ³

The prosecutor in this case unquestionably overstepped the bounds of propriety. We cannot say, however, that he overstepped the bounds of constitutionality since we are constrained by a narrow scope of review in this habeas proceeding. Petitioner must show that the remarks were so prejudicial that they rendered the trial in question fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Cobb v. Wainwright, 609 F.2d 754, 756 (5th Cir. 1980). Determining whether the challenged remarks had this effect turns on an assessment of the remarks within the context of the particular trial. See Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978). In this case, Jones' testimony had already been thoroughly impeached by the evidence of the four prior valid convictions before the challenged remarks could render the trial fundamentally unfair. And this is not a case in which the prosecutor alluded to nonexistent evidence in an effort to mislead the jury. Cf. Houston v. Estelle, supra at 381. Furthermore, a remark made by Jones concerning a lie detector test was spontaneous and not, as Jones complains, elicited by the prosecutor's questioning. As petitioner admits in his brief, the evidence was sufficient to convict him. Under all the circumstances reflected by the record in this case, we are clear to the conclusion that prosecutorial remarks of the character quoted above did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. See Houston v. Estelle, supra at 382, 384 (a defect of constitutional proportion is not to be found in any but egregious cases; the constitutional frontier stands very far indeed from the core of good prosecutorial practice).

As his final ground for relief, Jones contends that he was denied effective assistance of counsel during both his trial and direct appeal. His contention states that trial counsel was ineffective because counsel (1) neglected his obligation to prepare for trial; (2) failed to object to prejudicial prosecutorial remarks; (3) failed to timely object to the admission of the three allegedly void convictions; and (4) failed to request curative instructions for the withdrawal from evidence of two challenged convictions. The standard we must apply is whether the party was represented by "counsel reasonably likely to render and rendering reasonably effective assistance." Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980), citing MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). In light of this standard, Jones' claim is without merit.

This Court has held that the brevity of time spent in consultation, without more, does not establish that counsel was ineffective. See Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980); Carbo v. United States, 581 F.2d 91, 93 (5th Cir. 1978). Thus, it is not enough to show that counsel only met with Jones once before trial, as long as counsel was adequately prepared. The record reveals that counsel devoted...