King v. Beto, Civ. A. No. 67-H-901.

Decision Date06 November 1969
Docket NumberCiv. A. No. 67-H-901.
Citation305 F. Supp. 636
PartiesThaddeus KING, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
CourtU.S. District Court — Southern District of Texas

Marvin O. Teague, Houston, Tex., for petitioner.

Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent.

Memorandum and Order

SINGLETON, District Judge.

This is an application for habeas corpus filed by petitioner, Thaddeus King, seeking relief under 28 U.S.C. § 2241 et seq.

On October 10, 1966, petitioner was convicted in Criminal District Court No. 4, Harris County, Texas, on a charge of unlawful possession of heroin. The Texas Court of Criminal Appeals affirmed on June 21, 1967. King v. State, 416 S.W.2d 823 (Tex.Cr.App.1967). Petitioner's motion for rehearing was thereafter denied on July 26, 1967.

After that, petitioner applied for habeas corpus in the convicting court where he was denied permission to file. Again, the Texas Court of Criminal Appeals denied him relief. As respondent has admitted, petitioner has exhausted his available remedies in the courts of the State of Texas. The requirements set forth in Texas v. Payton, 390 F.2d 261 (5th Cir. 1968), have been satisfied.

Petitioner's sole contention is that he did not have the effective assistance of counsel within the spirit of the Sixth and Fourteenth Amendments to the United States Constitution.

Since the time of the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has not been doubted that each person accused of a crime, regardless of his ability to pay the costs, must have an attorney to represent him at trial if he wants one. By "assistance of counsel" the Sixth Amendment does not mean any assistance will do, but that there must be effective assistance. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940). See also Brown v. Beto, 377 F.2d 950 (5th Cir. 1967). In the latter case, effective assistance was defined in the following terms:

"`* * * Incompetency of counsel such as a denial of due process and effective representation by counsel must be such as to make the trial a farce, sham, or mockery of justice.' This Court has defined `effective counsel' in terms of a `reasonable counsel' standard: `We interpret the right of counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'" 377 F.2d 958.

As was said in Williams v. Beto, 354 F.2d 698, 705 (5th Cir. 1965), "Lawyers are not required to be infallible. If they were, law practice would soon totally disappear. * * *"

If, then, the Sixth Amendment does not require that criminal defendants have a perfect attorney, what does it require? The answer is that counsel must undertake to do those things necessary to the best interests of his client. As a bare minimum, this includes sufficient consultation with the accused to bring about an understanding of the case, advice to the accused of his constitutional rights, particularly his constitutional right to a trial by jury, and at trial a probing examination and cross-examination of witnesses, reasonable attempts to obtain and offer any defensive evidence, and if at all possible sufficient objections to the introduction of the evidence by the state so that the trial judge can have an opportunity to clearly understand the legal problems involved before making a ruling, and the presentation of some oral arguments on behalf of the accused. See Williams v. Beto, supra, citing Collingsworth v. Mayo, 173 F.2d 695 (5th Cir. 1949).

Unquestionably, these standards apply to attorneys which have been assigned to represent indigents. Whether they are applicable where the accused has retained counsel is another matter. At least one case in the Fifth Circuit has held that there is a distinction between lack of effective counsel and being denied the right to effective counsel. Howard v. Beto, 375 F.2d 442 (5th Cir. 1967). There has, however, been an indication in another Fifth Circuit case that the same considerations govern regardless of whether the attorney is appointed or retained. See Williams v. Beto, supra, 354 F.2d at p. 700, citing Williams v. United States, 120 U.S.App.D.C. 244, 345 F.2d 733 (1965), wherein Judge Burger, now the Chief Justice of the Supreme Court, said:

"We have no more right to ask volunteer lawyers to stultify themselves or prostitute their professional standards than we would have to demand that paid lawyers do so."

Here, petitioner was arrested on January 24, 1966, almost nine months before his trial. In the early part of February, petitioner's aunt, Ola Jones, contacted an attorney to represent petitioner in the matters pending against him. A fee was agreed upon and paid. Thereafter, this attorney, together with an associate, went to the Harris County Jail and talked to petitioner. At the examining trial the associate appeared on behalf of petitioner. Other than the first visit and...

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6 cases
  • Nelson v. Smith, CV-80-1062.
    • United States
    • U.S. District Court — Eastern District of New York
    • January 8, 1981
    ...Cir. 1970); Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. den., 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968); King v. Beto, 305 F.Supp. 636 (S.D.Tex. 1969), aff'd per curiam, 429 F.2d 221 (5th Cir. 1970), cert. den., 401 U.S. 936, 91 S.Ct. 921, 28 L.Ed.2d 216 (1971), 91 S.Ct. 921......
  • Santillan v. Beto, Civ. A. No. 72-H-494.
    • United States
    • U.S. District Court — Southern District of Texas
    • February 15, 1974
    ...of counsel' the Sixth Amendment does not mean any assistance will do, but that there must be effective assistance." King v. Beto, 305 F.Supp. 636, 637 (S.D.Tex. 1969). This circuit interprets right to effective counsel to mean: ". . . not errorless counsel, and not counsel judged ineffectiv......
  • Ex parte Diaz, 65162
    • United States
    • Texas Court of Criminal Appeals
    • January 28, 1981
    ...of the case, and is afforded an opportunity to present them to a court or jury in their most favorable light." See also King v. Beto, 305 F.Supp. 636 (5th Cir. 1969), affirmed 5th Cir., 429 F.2d 221. The record supports the petitioner's allegations that he was denied the effective assistanc......
  • King v. Beto, 28696.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 6, 1970
    ...District Court, Southern District of Texas, on the grounds that the petitioner was denied effective assistance of counsel at his trial, 305 F.Supp. 636. We Thaddeus King, Jr., (hereinafter petitioner) was arrested on the night of January 24, 1966, for possession of heroin. Shortly thereafte......
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