Litton v. Beto
| Citation | 386 F.2d 820 |
| Decision Date | 15 December 1967 |
| Docket Number | No. 24896.,24896. |
| Parties | D.H. LITTON, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
D.H. Litton, pro se.
Robert E. Owen, Asst. Atty. Gen., Crawford C. Martin, Atty. Gen. of Texas, George M. Cowden, First Asst. Atty. Gen., A.J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R.L. Lattimore, Howard M. Fender, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for appellee.
Before COLEMAN and SIMPSON, Circuit Judges, and DAWKINS, District Judge.
This is an appeal from denial by the district court of a writ of habeas corpus to a Texas state convict without a hearing, and without findings of fact. We reverse and remand for an evidentiary hearing, following which the district court should make findings of fact and conclusions of law as provided by Rule 52(a), F.R.Civ.P.
The appellant, represented by counsel retained for him by his mother, was convicted by the Texas trial court upon a plea of guilty of assault with intent to rape, for which he received a twenty-year sentence on July 25, 1963. He has exhausted his state post-conviction remedies in compliance with the provisions of 28 U.S.C. § 2254.
The appellant alleged in his Federal habeas petition that his plea of guilty was the result of "indirect intimidation" — the threat of a life sentence as a third felonious offender based on an indictment in which one of the prior convictions allegedly was for a misdemeanor, issuing a check without sufficient funds. Vernon's Ann. Texas Penal Code, Article 567b, Section 4, provides that the offense is a misdemeanor if the check is for less than $50.00, and a felony if the check is for $50.00 or more.
Unless the other prior felony alleged was for an offense of the same nature as the offense charged — which was not the case here — the appellant could not have been indicted or punished under any Texas recidivist statute unless he had two prior felony convictions. See Articles 62, 63, 64, Texas Penal Code. Under Texas law then in effect, the entire indictment including any prior convictions alleged for enhancement of punishment, was read to the jury as soon as it was impaneled. See Spencer v. State of Texas, 385 U.S. 554, 556, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).
Applicant's allegation relative to the prior conviction is not denied by the respondent, who argues that this is immaterial, since
The appellee's argument overlooks appellant's contention that the menace of trial and sentence of life imprisonment as an habitual criminal was what...
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Clark v. State
...1968); Corn v. Oklahoma, 394 F.2d 478 (10th Cir. 1968), cert. denied, 393 U.S. 917, 89 S.Ct. 245, 21 L.Ed.2d 203 (1968); Litton v. Beto, 386 F.2d 820 (5th Cir. 1967); Atkins v. Kansas, 386 F.2d 819 (10th Cir. 1967); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); Bee v. Beto, 384 F.2d 925 ......
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...425 S.W.2d 825; Law v. Beto, 5 Cir., 370 F.2d 369, cert. denied, 389 U.S. 863; 88 S.Ct. 123, 19 L.Ed.2d Page 660 132; Litton v. Beto, 386 F.2d 820; Bee v. Beto, 384 F.2d Id. at 834. Fierro was followed by two other appeals from guilty pleas in drug-possession cases, which we disposed of in ......
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Utsman v. State, 45540
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