Loper v. Beto
| Decision Date | 24 March 1971 |
| Docket Number | No. 29235.,29235. |
| Citation | 440 F.2d 934 |
| Parties | Otis LOPER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dan G. Matthews, John Cabiness, Houston, Tex., for petitioner-appellant.
Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Robert Darden, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Before GEWIN, MORGAN and ADAMS,* Circuit Judges.
Petitioner Otis Loper appeals from the denial of his petition for writ of habeas corpus. After conducting a thorough and extensive hearing on the petition, Judge Connally denied the writ in an unreported opinion wherein he made findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). We find no error in the findings and conclusions of the district court, and affirm.
Loper was charged and convicted of the statutory rape of his eight year old step daughter in the district court of Harris County, Texas on November 17, 1947. On November 20, 1947 Loper's motion for new trial was denied, and he was sentenced to serve fifty years in the state penitentiary. He did not appeal.
After serving fifteen years of his sentence, Loper was paroled on November 9, 1962 from the Texas Department of Corrections and given permission to move to Mississippi where he was assigned to a Mississippi state parole officer for supervision. Loper's parole, however, was of short duration. On February 5, 1963 he was arrested in Mississippi for car theft. Thereafter, when the Texas Board of Pardons and Paroles learned from the Mississippi Parol Board that Loper had been arrested for car theft and that the evidence against him was conclusive, the Board recommended to the Governor of the State of Texas that he revoke Loper's parole. In accordance with this recommendation the Governor on March 4, 1963, entered a parole revocation order and directed the issuance of a warrant for Loper's arrest. Before this order could be executed, however, Loper escaped from the Carthage, Mississippi, jail and remained a fugitive for over a year. When he was finally apprehended on April 6, 1964, in St. Joseph, Louisiana, he was taken into custody and eventually transported to the Texas Department of Corrections where he has since remained incarcerated.
Beginning in 1949 Loper has unsuccessfully filed a steady succession of petitions for the writ of habeas corpus, in the State District Courts, the Court of Criminal Appeals, and at least two United States District Courts.1 Following Loper's most recent petition,2 the district court held a plenary hearing on November 10, 1969 pursuant to the order of this court directing an evidentiary hearing on the question whether petitioner had been deprived of his right to appeal. Prior to the hearing petitioner and his court-appointed counsel were instructed that, in addition to the single issue remanded to the district court, petitioner should present any and all conceivable issues which might be raised on his behalf so that the legality of his confinement might be conclusively determined. In accordance with these directions the following points were raised: (1) the propriety of impeaching defendant by prior convictions wherein he was not represented by counsel; (2) the adequacy of representation of counsel; (3) the alleged suppression of evidence by the state; (4) the denial of parole revocation hearing; (5) and the denial of pre-trial discovery.
At his state court trial for rape in 1947, Loper took the stand and testified in his own behalf. During the cross-examination of Loper, counsel for the state asked him how many times he had been convicted of a felony in Texas or any other state. Loper readily admitted that he had been convicted of burglary on four different occasions during the period 1931-1940 — three times in Mississippi and one time in Tennessee. On one of the occasions in question he used the assumed named of Milton Cummings. No objection as to the validity of these convictions was raised and the records of the convictions were not offered in evidence.3 The evidence in question was introduced solely for the purpose of impeachment; it did not relate to, or increase the punishment. There is not the slightest suggestion in the record that the state of Texas had any knowledge of a possible infirmity in the convictions. Loper now insists that evidence of these convictions was not admissible for the purpose of impeachment because the convictions were obtained in violation of the principles of Gideon v. Wainwright.4 He claims that he did not have counsel at these trials and that he did not voluntarily or intelligently waive the right to counsel.
On this issue Loper places heavy reliance upon Burgett v. Texas5 which held that former convictions when counsel was not provided or intelligently waived could not be used for the purpose of enhancement under the Texas Penal Code. By analogy he argues that the same rule should apply to the use of such former convictions for the purpose of impeachment. We decline to extend the teachings of Burgett to the situation here presented. The convictions mentioned have been of record for a number of years, yet the record before us does not disclose that any attack has ever been made upon those convictions. Except for the assertions of Loper the record fails to furnish any conclusive information as to the facts and circumstances surrounding his former convictions. So far as the record before us reveals, there are outstanding, unchallenged, state court convictions of felonies in the States of Mississippi and Tennessee. We recognize the force of Loper's argument to the effect that such convictions may have impaired his credibility in the minds of the jury as a witness in his own behalf; nevertheless, if the convictions possessed the infirmities which Loper claims, he has failed to make any effort to set them aside for over 30 years. No one else could have done so. Surely such an attack was available to him in view of the retroactive application of the Gideon decision which was decided over six years prior to the hearing under review. Furthermore, it is obvious to us that the use of such convictions as evidence for purposes of impeachment which goes only to credibility, is not nearly so serious as the use of a conviction for enhancement, which may add years of imprisonment to the sentence of a defendant. Although we do not feel bound on this issue by decisions of the Texas Court of Criminal Appeals, we do take note of the fact that decisions in the State of Texas have declined to accept Loper's contention.6 Moreover, in the recent case of Barbosa v. Craven,7 the Ninth Circuit likewise refused to grant relief in the circumstances here presented. The issue presented raises an evidentiary question. The fact that there are possible infirmities in the evidence does not necessarily raise an issue of constitutional proportions which would require reversal. In Chapman v. California the Court stated:
We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.8
Petitioner contends that the trial court erred in not holding that he was deprived of effective representation of counsel. Although the right to counsel means the right to effective assistance of competent counsel,9 the Sixth Amendment does not guarantee subjectively satisfactory results for those accused of crime; nor does it guarantee errorless and prevailing counsel, or even the best counsel available.10 As we said in MacKenna v. Ellis:11
We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.12
Only if the attorney's conduct is "shocking to the conscience of the Court" can the charge of ineffective counsel prevail.13
After an evidentiary hearing at which petitioner was represented by court-appointed counsel and at which petitioner himself testified on the matter, the trial court found the following facts: that Loper's attorneys14 had contacted various witnesses listed on the state's complaint prior to trial and had ascertained the substance of their testimony; that the attorneys had examined the indictment for flaw; that they had consulted with the District Attorney with respect to the plea of guilty and an agreed sentence, had arrived at an agreement whereby the petitioner would plead guilty in return for a ten year sentence, a trade which petitioner declined to accept; and finally that they took steps to appeal the judgment of conviction but were dissuaded from doing so by Loper.15 From these facts the court concluded that Loper's contention that he was deprived of effective representation of counsel was without merit.
Upon a full consideration of all of the testimony presented, this court must conclude that the findings of the district court were not clearly erroneous. Rule 52(a), F.R.Civ.P.
Petitioner claims that he was denied due process of law because the state suppressed evidence favorable to his defense. He contends that the state threatened to prosecute his wife, Willette Loper, for insufficient supervision of her daughter if she appeared at the trial and that this threat caused her to leave town so that she could not testify in his behalf.
With reference to the availability of Mrs. Loper as a witness and the possible relevancy of her testimony, it is fair to state that all of the evidence developed in the district court does not point in one...
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