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

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: SINGLETON
• Citation: 305 F. Supp. 636
• Decision Date: 06 November 1969
• Docket Number: Civ. A. No. 67-H-901.
• Parties: Thaddeus KING, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

305 F. Supp. 636

Thaddeus KING, Petitioner,
v.
Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 67-H-901.

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

November 6, 1969.

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,

305 F. Supp. 637

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...