Lamb v. Estelle, 80-2144

• Decision Date: 12 February 1982
• Docket Number: No. 80-2144,80-2144
• Citation: 667 F.2d 492
• Parties: Lexington S. LAMB, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 492

667 F.2d 492

Lexington S. LAMB, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 80-2144.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1982.

Lexington S. Lamb, pro se.

Charles W. Schwartz (court-appointed), Vinson & Elkins, Houston, Tex., for petitioner-appellant.

Charles A. Sharman, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before THORNBERRY, TATE and WILLIAMS, Circuit Judges.

TATE, Circuit Judge:

The plaintiff Lamb brought habeas corpus proceedings in federal district court to challenge 1944, 1947, and 1958 convictions in Texas state court. 28 U.S.C. § 2254. The district court dismissed his application on alternate grounds with respect to the 1944 and 1947 convictions. An evidentiary hearing was held on Lamb's 1958 conviction: Lamb was not represented by counsel at that hearing, and his application concerning the 1958 conviction was dismissed.

Because we hold that Rule 8(c) of the Rules Governing Section 2254 Cases requires the appointment of counsel in the evidentiary hearing, we vacate the district court order insofar as it denies relief as to the 1958 conviction. We affirm, however, the dismissal of the application for habeas relief based on the 1944 and 1947 convictions.

Facts

Lamb, then 18 years of age, was first convicted in 1944 of auto theft. He pleaded guilty, and he received a two-year sentence. He was next convicted in 1947 of burglary and forgery. He again pleaded guilty and received two concurrent five-year sentences.

The third conviction occurred on March 4, 1958. While in prison for another offense, Lamb was indicted for embezzlement and theft by bailee. Both charges were accompanied by an habitual-offender enhancement count. Lamb pleaded guilty to the theft by bailee with the habitual count and he received the life sentence manditorily imposed upon third time offenders. Lamb claims that the attorney who represented him in the 1958 prosecution was appointed, although Lamb and his brother admitted to paying the attorney a small amount of money that Lamb claimed his mother gave him while he was in prison. ¹ Lamb requested that this lawyer appeal the 1958 conviction, but the lawyer refused. ² On August 22, 1958, Lamb filed a "Writ of Error" with the district court of the Travis County court department, but the petition has never been acted upon. ³

Lamb filed applications for state habeas corpus relief in March 1964, June 1964, February 1967, and April 1967. All four applications were denied and affirmed by the Texas Court of Criminal Appeals. Lamb subsequently filed another application for state habeas corpus relief, and this application was denied after a hearing was held in 1968 in state court concerning his attack upon the three convictions. Following the denial of his claim for state habeas relief, Lamb applied to federal district court in 1968, at this time questioning only the 1944 and 1947 convictions. Lamb argued that he was not represented by counsel at the plea hearings, that if counsel were present, Lamb received inadequate representation, and that his pleas were not knowing and voluntary. The district court denied relief and we affirmed in Lamb v. Beto, 423 F.2d 85 (5th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970). Lamb filed two subsequent applications for state habeas relief in state court in 1973 and 1976. These applications were both denied.

The present proceedings were instituted on April 4, 1977, when Lamb applied pro se in federal district court for habeas corpus relief to invalidate the three state convictions. He appeals from the denial of relief.

With respect to the 1944 and 1947 convictions, the district court denied the application, without an evidentiary hearing, because Lamb's "contentions with regard to ineffective assistance of counsel at the 1944 and 1947 convictions have previously been rejected by the Court of Appeals for the Fifth Circuit. Lamb v. Beto, 423 F.2d 85 (5th Cir. 1970)." The district court also denied the petition on the alternate ground that Lamb's inordinate delay in applying for habeas relief required dismissal pursuant to Rule 9(a) of the Rules Governing Section 2254 cases. ⁴ However, the district court noted that, although the delay problem was also present with respect to the 1958 conviction, Lamb's application for habeas relief concerning that conviction would not be dismissed on the face of the pleadings and the defendant was required to file an answer with respect to Lamb's claims of denial of effective assistance of counsel at his 1958 guilty plea and conviction, and the denial of counsel to prosecute an appeal.

An evidentiary hearing pursuant to Rule 8(c) of the Rules Governing Section 2254 cases was thereafter held with regard to the claim of ineffective assistance of counsel insofar as the 1958 plea of guilty. Lamb was not represented by counsel at this hearing.

The magistrate rejected Lamb's contentions to the effect that he was denied effective assistance of counsel and that due to defective legal advice his plea was unknowing and involuntary-the substance of the complaint being that he would not have entered the plea had he realized that he would receive a mandatory life sentence. As to Lamb's further complaint that his counsel failed to appeal as requested, the magistrate denied relief because Lamb did not inform the state of his wish to appeal after his attorney refused further employment.

The 1944 and 1947 Convictions

Lamb concedes that the present application for relief from the 1944 and 1947 convictions contains the same grounds for relief presented in Lamb v. Beto, 423 F.2d 85 (5th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84, and that the prior determination was on the merits. Thus, Rule 9(b) ⁵ permitting dismissal of a successive petition, might ordinarily be applicable. Lamb relies, however, on the language in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that "(e)ven if the same ground was rejected on the merits on a prior application, it is given to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground." Id. at 16, 83 S.Ct. at 1078.

In Lamb v. Beto, supra, we held that "the only required duty of counsel under the most liberal construction when a plea of guilty is entered is that counsel ... should ascertain if the plea is entered voluntarily, and knowingly." 423 F.2d at 87. Lamb argues that the ends of justice will not be served by failing to reach the merits of the present application because, since Lamb v. Beto was decided in 1970, the requirements imposed on counsel for a defendant who pleads guilty have become considerably more stringent than the "voluntary and knowing" standard. Lamb again points to language in Sanders, supra, that on re-applying for habeas relief, "the applicant may be entitled to a new hearing upon showing an intervening change in the law." 373 U.S. at 17, 83 S.Ct. at 1078.

The general standard imposed on counsel in guilty plea contexts has remained the same since the 1944 and 1947 guilty pleas were entered: counsel must ensure that the guilty plea is knowingly and voluntarily made. Hill v. Estelle, 653 F.2d 202, 206 (5th Cir. 1981); Jones v. Henderson, 549 F.2d 995, 996-97 (5th Cir.), cert. denied, 434 U.S. 840, 98 S.Ct. 135, 54 L.Ed.2d 103 (1977).

This is not to deny that there have been a number of recent cases that discuss the present scope of counsel's duty to insure that his client's guilty plea is knowing and voluntary. ⁶ Specifically, these cases concern whether counsel has rendered requisite effective assistance under the Sixth Amendment so that the plea may properly be considered voluntary and knowing. For example, in Walker v. Caldwell, 476 F.2d 213, 224 (5th Cir. 1973) we held that appointed counsel should "actually and substantially assist his client in deciding whether to plead guilty." (emphasis in original). In Colson v. Smith, 438 F.2d 1075, 1079 (5th Cir. 1971), we required that competent counsel must advise the defendant so that his guilty plea is the result of "informed and conscious choice." Nevertheless, these cases merely represent applications of the general standard that we have affirmed time and time again-counsel must ascertain whether the plea was voluntary and knowing. Counsel must make this determination, however, in a manner that satisfies the Sixth Amendment, but "what constitutes adequate representation of counsel must be considered within this (guilty-plea) framework." Pollinzi v. Estelle, 628 F.2d 417, 419 (5th Cir. 1980).

Further, these recent decisions were not meant to establish rigid rules applicable to counsel in all guilty plea situations. In Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973), the pro forma procedure followed by the resident defense attorney-who routinely "processed" ten or more defendants at a morning plea session-denied the defendant the effective assistance of counsel required to insure the voluntary and knowing quality of his plea. We emphasized, however, that our holding was limited to the facts of that case, and that "not ... every appointed counsel representing an accused who desires to plead guilty, must investigate all the facts of the case, explore all possible avenues of defense, etc." Id., 476 F.2d at 224.

Conceding arguendo that the "knowing and voluntary" standard (i.e., as well as the scope of counsel's duty in guilty pleas) has changed and become more stringent since Lamb's convictions in 1944 and 1947, Lamb cites us to no decision of this or any other court that would make those changes retroactively applicable to pleas entered in 1944 and 1947. A recent decision of our court suggests, however, that effective assistance of counsel standards are not to be retroactively applied in guilty plea...