Lowery v. Estelle

Decision Date24 January 1983
Docket NumberNo. 81-1198,81-1198
Citation696 F.2d 333
PartiesJackie Vance LOWERY, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director Texas Department of Corrections, Respondent- Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Vinson & Elkins, Jeffrey W. Steidley, Houston, Tex. (Court-appointed), for petitioner-appellant.

Charles A. Palmer, Joe Foy, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN and JOHNSON, Circuit Judges, and DUPLANTIER, District Judge. *

JOHNSON, Circuit Judge:

Jackie Vance Lowery stands convicted of robbery by firearms. The district court found no violation of double jeopardy, due process, or the sixth amendment in his conviction, and denied his request for habeas corpus relief. We affirm.


On an October afternoon in 1970, two men brandishing guns strode into the business office of the City Service vending machine firm as the owner and an employee counted up the day's receipts. The thieves terrorized the businessmen, forcing them at gunpoint to lie face down on the floor in a back room. One stood guard with a .357 magnum; the other began to gather the bags of change. But before the scene was played out, a machine serviceman returned to the office from his rounds. The thief carrying a .357 magnum felled him as he entered. The serviceman, Morris Patterson, died a half hour later.

Separate indictments charged Jackie Vance Lowery with committing murder with malice and robbery by firearms in the City Service holdup. The murder case was tried first. Lowery was convicted and sentenced to death. While Lowery's appeal of the murder conviction was pending, the robbery charge came to trial. For reasons undisclosed in the record on appeal, the State moved at arraignment to strike the indictment's allegation that the robbery was committed "by using and exhibiting a firearm, to wit: a gun." The motion was granted; under Texas law, its effect was to reduce the charge to the lesser included offense of robbery by assault. Cross v. State, 474 S.W.2d 216 (Tex.Cr.App.1971); Ex Parte Merritt, 262 S.W.2d 725 (Tex.Cr.App.1953). The case was tried on the redacted indictment. Over Lowery's plea of not guilty, the jury returned a conviction and assessed punishment at a term of not less than five and not more than five hundred years.

A few months later, the Texas Court of Criminal Appeals reversed Lowery's conviction of murder with malice for its reliance on evidence seized in violation of the fourth amendment. Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973). The trial court subsequently granted Lowery's motion for a new trial on the robbery charge. 1 A consolidated retrial proceeded on the original indictments, but with an important difference: at some time prior to retrial, in a manner undisclosed in the record on appeal, the State revived the robbery indictment's allegation of use of a firearm. Lowery was again convicted, but this time of murder with malice and robbery by firearm. 2 He was sentenced to terms of ninety-nine years for each offense.

Several applications for post-conviction relief followed. 3 The one now before us presented four claims in identical, sequential petitions to the state courts and the federal district court. Lowery charged, first, that the striking of the aggravation element prior to his first trial operated as a functional acquittal of the greater offense, rendering his subsequent trial on the unexpurgated indictment violative of the double jeopardy clause. He argued that certain reputation evidence admitted at the punishment phase of his trial and the prosecutor's argument of that evidence were so prejudicial as to make the proceeding fundamentally unfair. And finally, he claimed ineffective assistance of counsel at trial and on appeal. Although the state courts summarily rejected the claims as "totally without merit," the matter took a slightly different turn in the federal district court. The magistrate to whom Lowery's petition was referred, like the state courts before him, found no basis for relief in the claims presented. He suggested, however, that two potentially substantial deficiencies had escaped Lowery's attention. The magistrate noted that Lowery had not challenged the validity of the State's revivification of the portion of the robbery indictment charging use of a firearm; he also noted that retrial on the greater offense after vacation of the conviction on the lesser raised the spectre of vindictive prosecution. But having raised the problems, he dispelled them: the first he found to be purely a problem of state law, and the second chimerical, as the sentence returned on the second conviction was less severe than that initially imposed. The district court adopted the magistrate's resolution and denied relief. 4

Lowery's appeal reasserts the four issues presented to the state and federal district court, and expands on the arguments first identified by the federal magistrate. We conclude that the latter are not properly before us and affirm denial of relief on the former.


Lowery vigorously argues that the due process clause was twice violated in his retrial on the charge of robbery with firearms. He claims, first, that the striking of the firearm allegation irreversibly stripped the convicting court of jurisdiction over the greater offense under the original indictment. He also charges that the State's return to the greater charge on retrial impermissibly upped the ante after his effective exercise of his right to appeal. Two firm principles prevent our immediate resolution of these claims: as the State points out, Lowery argues both for the first time in this appeal, and has exhausted state remedies on neither. 5

A bedrock of good sense and keen appreciation for the capabilities of other forums underlies what sometimes appears to be a Byzantine maze of procedures governing collateral attacks on state criminal convictions. Recent Supreme Court decisions have emphasized the requisites to federal appellate consideration of state-confined habeas corpus petitioners' pleas. Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) admonished that even a per se violation of a criminal defendant's constitutional rights, appearing clearly in the record, does not justify initial consideration of the unexhausted claim in the Court of Appeals, compare Stuckey v. Stynchcombe, 614 F.2d 75, 77 (5th Cir.1980) and Tifford v. Wainwright, 592 F.2d 233, 234 (5th Cir.1979) with Cobb v. Wainwright, 666 F.2d 966, 968 n. 1 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). Cf. Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (requiring complete exhaustion of all claims presented in a state prisoner's proceeding for habeas corpus prior to a federal district court's consideration of the petition). Pullman-Standard v. Swint, --- U.S. ----, 102 S.Ct. 1781, 1791-92, 72 L.Ed.2d 66 (1982), addressing a related principle in a different context, admonished appellate courts to refrain in all but the clearest of circumstances from initial, independent fact-finding. Lowery's allegations bring some of the reasons for these principles of appellate procedure into sharp focus.

An absence of jurisdiction in the convicting court is, as Lowery claims, a basis for federal habeas corpus relief cognizable under the due process clause. Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980); Bueno v. Beto, 458 F.2d 457, 459 (5th Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 176, 34 L.Ed.2d 140 (1982); Murphy v. Beto, 416 F.2d 98, 100 (5th Cir.1969). But, as Lowery acknowledges, the predicate conclusion of no jurisdiction derives wholly from state law controlling the validity of Texas indictments. Texas courts have held that the dismissal of an indictment conclusively ousts the trial court of jurisdiction. Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Cr.App.1980); Ex Parte Minus, 118 Tex.Cr.R. 170, 37 S.W.2d 1040 (1931). A subsequent order purporting either to reinstate the cause or enter judgment thereon is void ab initio, Garcia at 528; Ex Parte Kirby, 626 S.W.2d 533, 534 (Tex.Cr.App.1981). The defect cannot be waived, but can be raised at any point in direct or post-conviction proceedings, Kirby at 534; Ex Parte Cannon, 546 S.W.2d 266, 267 (Tex.Cr.App.1976); see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Lowery argues that the striking of the indictment's allegation of use of a firearm is tantamount to dismissal of the greater offense, see Bradley v. State, 456 S.W.2d 923, 925 n. 1 (Tex.Cr.App.1970), and argues from the settled principles governing dismissal of whole indictments that a conviction entered on a charge including a reinstated element of aggravation is void, compare Ex Parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286 (1944) (according jurisdictional effect to dismissal of portion of indictment charging the felony to be a capital offense). Lowery cites, and our research has unearthed, no Texas precedent directly addressing his argument. 6

The exhaustion requirement, in its most fundamental aspect embodying respect for the coordinate capabilities of state courts to enforce federal constitutional directives in state criminal justice proceedings, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), takes on special significance where constitutional claims are enmeshed with state law. Bueno at 459; Murphy at 100. Lowery's claim of a constitutional defect in the convicting court's jurisdiction appears at this juncture to turn solely on a technical question of Texas procedural law. Enforcement of the exhaustion requirement relinquishes the claim in both its constitutional and state law dimensions in the first instance to the province of the Texas courts.

A somewhat different problem plagues Lowery's vindictive prosecution allegation: events extraneous to Lowery's...

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