Kimbrough v. Beto

• Citation: 412 F.2d 981
• Decision Date: 26 May 1969
• Docket Number: No. 26595.,26595.
• Parties: Jesse Coy KIMBROUGH, Plaintiff-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

412 F.2d 981 (1969)

Jesse Coy KIMBROUGH, Plaintiff-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Defendant-Appellee.

No. 26595.

United States Court of Appeals Fifth Circuit.

May 26, 1969.

Jesse Coy Kimbrough, pro se.

Crawford C. Martin, Atty. Gen. of Texas, Allo B. Crow, Jr., Asst. Atty. Gen., Austin, Tex., for defendant-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

It is appropriate to dispose of this pro se case summarily, pursuant to this Court's local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure.

In this habeas corpus proceeding involving a Texas state conviction on a plea of guilty, the Federal District Judge below conducted a thorough and complete evidentiary hearing and denied the petition. The testimony of the principal actors in the case had been received in evidence and fully considered by the Trial Judge. Petitioner was represented at the habeas hearing by experienced court-appointed counsel with more than twenty years' experience. In a comprehensive and well-reasoned opinion (unpublished) the District Court rejected all of the several contentions urged by petitioner as grounds for setting aside his convictions. We adopt the findings and conclusions of the Trial Court and attach his memorandum opinion as an appendix to this opinion.

One of petitioner's contentions relates to the voluntariness of his guilty plea which leads us to expand our comments in regard to this issue as follows: The record fully discloses the facts and circumstances pertinent to the entering of the plea of guilty — a plea which was entered more than four years prior to the hearing of the present petition. The evidence revolved around the contention of petitioner that he pled guilty only because he was threatened by the District Attorney that if he did not do so he would be reindicted and tried as an habitual criminal under Texas state law. It is conceded that there were prior convictions to support such an indictment.

The District Judge made credibility choices — which he had a right as trier of the facts to do — and rejected the testimony of petitioner, his father, and his attorney. The Trial Judge found that the testimony of petitioner's lawyer had been dimmed with the passage of time, and that he either misunderstood the District Attorney's statement relative to the threat of indictment of petitioner as an habitual criminal or had forgotten exactly what was said when he testified at the present hearing. The District Judge held that it was plain from the testimony of petitioner's counsel that he urged petitioner to plead guilty based on his own independent judgment of the merits and practicalities of the case, on the fact that petitioner was guilty, that the State could prove it, and that it was in petitioner's best interest to plead guilty in order to obtain the promised recommendation of a fifteen-year sentence — that all of this was without regard to anything the District Attorney stated or did on the morning the plea was entered. Petitioner, in the presence and with the assistance of his defense counsel, entered a plea of guilty in the Texas State Court after being carefully examined by the State Court Judge, in approved fashion, as to whether his plea was being freely and voluntarily made.

The Federal District Judge held that he was "convinced that the district attorney was telling the truth" about the matter and "that the district attorney did not state that he was going to have petitioner re-indicted and tried as an habitual criminal."

It is true that the Court felt that even if petitioner had been able to prove that the District Attorney did threaten to reindict him as an habitual criminal it would have been unavailing since this would not have been "illegitimate action," since there were prior convictions to support such an indictment. But it is abundantly clear that the District Judge's decision was not based on this concept, but upon findings of credibility as between the witnesses who testified. The Court held "that it was the legitimate urging of defense counsel and the petitioner's own realization that he was guilty and the State had the proof, and not any conduct on the part of the district attorney on the morning in question, which brought about the pleas of guilty."

A reading of the District Judge's memorandum opinion shows that he believed the testimony of the State District Attorney, but did not accept as true the testimony of petitioner or of his witnesses on the issue of the threat to reindict petitioner as an habitual criminal in order to induce his plea of guilty.

"It is well settled that in order for a reviewing court to set aside findings of fact by a trial court sitting without a jury, it must be clearly demonstrated that such findings are without adequate evidentiary support in the record, or were induced by an erroneous view of the law, and the burden of showing that the findings are clearly erroneous is on the one attacking them. The findings of a district court are not, therefore, lightly to be set aside, for the Court of Appeals is not a trier of facts, and does not substitute its own judgment for that of the trial court."

Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776. (Emphasis added.) We should not attempt, as an appellate court, to decide where the truth lies among the several witnesses, without hearing or seeing them, and in derogation of the right and duty of the Trial Court to make credibility choices.

Affirmed.

APPENDIX

MEMORANDUM OPINION

A full evidentiary hearing has been held on the petitioner's application for writ of habeas corpus, with petitioner and his court appointed counsel present in person and participating. His lawyer was able and had had over twenty years experience in the practice. Adequate time was given for preparation, and petitioner was well represented in this hearing.

On May 27, 1963, the petitioner was convicted in Causes Nos. 13063, 13064, and 13065, all styled the State of Texas vs. Jesse Coy Kimbrough, in the District Court of Stephens County, Texas, of the three offenses of burglary, illegal possession of narcotic drugs (morphine, Demerol and Dolophine) and illegal possession of paraphernalia for purpose of injecting narcotic drugs. The convictions were upon negotiated pleas which met the standards laid down in Cooper v. Holman, 5 Cir., 356 F.2d 82 (1966), and Brown v. Beto, 5 Cir., 377 F.2d 950 (1967). The petitioner's criminal record showed that he had lived a life of crime with convictions for serious offenses, including robbery, smuggling of heroin, and burglary; but he was let off with a total sentence of fifteen years, arrived at by twelve years on the burglary case and fifteen years on each of the narcotics cases, all to run concurrently. The penalty for burglary in Texas was two to twelve years, and, for each of the offenses under the narcotics statute, was two years to life. Vernon's Ann.Texas Penal Code, Articles 1397 and 725 b, Sec. 23, respectively. The minimum sentence under the narcotics statute for a person who had a prior narcotics conviction was ten years.

The petitioner prepared his own application with the help of fellow convict professional "writ writers", and his attorney did not deem it necessary to amend the application. With allowances usually made under these circumstances, the Court has liberally construed the application and all papers filed by petitioner in connection therewith and has heard evidence on all grounds without regard to formalities. When his application and supporting papers are so construed, the grounds urged by petitioner for setting aside his three convictions are:

1. The search of his clothing and his pickup truck was illegal.

2. The hearing on the issue of his sanity held in advance of the day of his trial was invalid because his psychiatric testimony was not rebutted by opinion testimony of like character.

3. He was under the influence of narcotics at the time he pleaded guilty.

4. His pleas of guilty were involuntary.

The petitioner is a chronic "writ writer". His testimony indicates that he has spent most of his spare time in the "writ room" since he has been in the penitentiary on this occasion. He says he has read all the recent Supreme Court decisions in criminal cases he could get his hands on. He filed four applications for writ of habeas corpus in the state court and one in the federal court before this proceeding was instituted in the Abilene Division of this Court. Some of the same grounds have been repeated over and over, even after previous applications containing them had been rejected. He has also filed one in the Fort Worth Division of this Court after the evidence was heard in this matter in Abilene, giving him a total of seven applications. In view of the petitioner's strong literary inclinations, this opinion will be more lengthy than it probably ought to be, with the hope that time will be saved in the long run by slowing down petitioner and his convict ghost writers in their repetitious urging of meritless grounds through variations in shading. Each point here urged will be discussed, then, not only from the standpoint of whether the facts support petitioner's claims, but also of whether the petitioner would have any legal standing even if his claims were factually supported.

The petitioner lived in Eastland, Texas, which is about thirty-five miles from Breckenridge, Texas. Two nighttime drug store burglaries, each involving a theft of a considerable quantity of narcotic drugs occurred in Breckenridge within a few days of each other in October, 1962. After the last burglary, the petitioner, operating a pickup truck at a high rate of speed, ran head-on into a truck on the outskirts of Breckenridge as he was leaving the city. He was knocked unconscious, and was taken to a hospital where he remained unconscious for...