Mistrot v. Wade, 28900.

• Decision Date: 06 November 1970
• Docket Number: No. 28900.,28900.
• Citation: 433 F.2d 1056
• Parties: Thomas Francis MISTROT, Plaintiff-Appellant, v. Henry WADE, Criminal District Attorney, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

433 F.2d 1056 (1970)

Thomas Francis MISTROT, Plaintiff-Appellant, v. Henry WADE, Criminal District Attorney, et al., Defendants-Appellees.

No. 28900.

United States Court of Appeals, Fifth Circuit.

November 6, 1970.

Thomas Francis Mistrot, pro se.

John A. Mackintosh, Dallas, Tex., for plaintiff-appellant.

Henry Wade, Criminal Dist. Atty., John B. Tolle, Camille Elliott, Edgar A. Mason, Asst. Dist. Attys., Dallas, Tex., for defendants-appellees.

Before COLEMAN, AINSWORTH, and GODBOLD, Circuit Judges.

COLEMAN, Circuit Judge.

On September 16, 1968, this appellant was indicted by a state grand jury for the sale of marijuana. As charged, the offense upon conviction would have carried a maximum penalty of confinement for not less than five years nor more than life.

Mistrot, however, had twice previously been convicted of a felony. Under Article 63 of the Texas Penal Code this made him liable to a mandatory life sentence if appropriately charged and convicted.

On August 18, 1969, eleven months after the original indictment, Mistrot was so charged in a second indictment. On October 29, 1969, he was tried under the "enhanced" indictment and found guilty. On October 31, 1969, the first indictment was dismissed.

On October 28, 1969, the day before he was due for trial in the state court, Mistrot filed in the United States District Court a pro se application to enjoin the state trial.

The pro se application alleged as follows:

"The Plaintiff was arrested on July 23, 1968. Being indigent, and therefore financially unable to post bail, he has remained in custody. Shortly after the original, unenhanced indictment was presented against him, an Agent of the Defendant, commonly known as the `copout\' man, came to see him and offered him a `deal\' in exchange for his guilty plea. A `deal\' is the offer of a term, substantially less than the maximum allowed by law. The Plaintiff refused the `deal\' and requested that he be accorded a trial by jury. The threat was made to him, by the `cop-out\' man, that if Plaintiff did not accept his offer and plead guilty, that he would be reindicted and tried as a habitual offender, and given a life sentence. The Plaintiff received several subsequent visits from the `cop-out\' man, and on each occasion the same threat was made to him that if he did not accept the `deal\' and plead guilty, he would be reindicted and tried as a habitual offender. Finally on August 18, 1969 the Plaintiff was reindicted in indictment Number C-69-4247-I-J charging him with a sale of narcotics, as a habitual offender pursuant to Art. 63, Tex.Pen.Code (1958), and the case is set for trial on the docket of Criminal District Court Number Three, Dallas County, Texas, on October 28, 1969.

"The Plaintiff, does not, by this suit, attempt to test or question the constitutionality of the Texas Recidivist Statutes, but rather the illegal, unconstitutional use of them by the Defendant and his Agents as coercive weapons, to force accused persons to waive and relinquish their fundamental rights guaranteed under the United States Constitution. Forced confessions and guilty pleas are not tolerated under the Constitution. If the Plaintiff, in the first instance, had been indicted as a habitual offender, he would have no standings to complain. However, since his original indictment was found and presented against him by legally and lawfully impaneled grand jury, and since the indictment was a good one, that is, without fault, the Defendant had no lawful cause, or reason to cause its dismissal and cause a return, and presentment of a habitual indictment against Plaintiff, by another grand jury, thirteen (13) months after his arrest. Such act by the Defendant was arbitrary, capricious, and calculated to punish and retaliate against Plaintiff because he elected to exercise those rights guaranteed him under the Constitution, which has deprived him of his Fifth and Fourteenth Amendment rights to due process of law.

"Plaintiff seeks a temporary restraining order pursuant to Rule 65-b (1) of the Federal Rules of Civil Procedure to enjoin his October 28, 1969 state trial in this cause, in view of the fact that should he suffer conviction upon the unconstitutionally enhanced indictment, he would suffer immediate, irrepairable injury, and that after proper hearing, that he be granted permanent injunctive relief to prevent the Defendant or his Agents from putting him to trial on an enhanced indictment charging him as a habitual offender, in the instant cause. He does not seek to bar prosecution on a lawful, unenhanced indictment."

The District Court dismissed the application without a hearing. We aff...