Moore v. Estelle

• Decision Date: 02 February 1976
• Docket Number: No. 75-2442.,75-2442.
• Citation: 526 F.2d 690
• Parties: Henry Demps MOORE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 690

Henry Demps MOORE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee.

No. 75-2442.

United States Court of Appeals, Fifth Circuit.

February 2, 1976.

Don R. Hanmer, Dallas, Tex. (Court-appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., Merrill Finnell, Robert E. DeLong, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before COLEMAN, CLARK and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge.

For the third time, Henry Demps Moore, a Texas state prisoner, twice convicted of robbery in that state, seeks habeas corpus relief from the enhancement of his sentence for the second robbery. On this third go around the District Court, without an evidentiary hearing, denied relief. For the reasons hereinafter set forth, we affirm.

The Facts of the Case

On July 21, 1967, a convenience store in Waco, Texas, was robbed by two black men, wearing Panama hats. The perpetrators proved to be the brothers Moore, Henry Demps and Allen. Moore v. State, 466 S.W.2d 289 (Tex.Cr.App. 1971); Moore v. State, 434 S.W.2d 852 (Tex.Cr.App. 1968).

The robbers put the contents of the cash register in a paper sack, then robbed the store manager, an employee, and a number of customers of their personal funds. They snatched several cans of Spam and packs of Pall Mall cigarettes. Their victims had them under observation at close range for some time. Another individual witnessed their flight from the store and their get away in a large, white automobile, during the course of which a hat and some cigarettes were dropped.

Local law officers broadcast a description of the get away car. Soon afterwards, a car of similar description was stopped after forcing a state highway patrol car off the road. After the car was first stopped, it moved in an evasive manner and one of the occupants emerged from the vehicle with a large wad of bills protruding from his shirt pocket. Two loaded pistols, used in the robbery, were found in the car, as well as a paper sack full of change, cans of Spam bearing the store's pricing code, loose packs of Pall Mall cigarettes, and the other Panama hat. The occupants of the car were the Moore brothers. In essence, these men were not caught in the act but they most assuredly were caught "with the goods", and that very soon after the event.

The State Court Prosecution

Henry Demps Moore was indicted for robbery by assault. For enhancement of the sentence, the indictment alleged that he had been convicted of the same offense in 1958. Represented by appointed counsel, Moore went to trial on a plea of not guilty to the 1968 offense. He was convicted. Under Texas procedure, the next step would have been a trial on the enhancement count, the sole issue being whether the defendant was the same man who committed the 1958 offense. Moore chose to stipulate that he was the same person and he entered a formal plea of guilty to the enhancement count.

It would be difficult to imagine a more thorough, searching examination before accepting a plea than that given Moore in open court by the Texas trial judge. Its excellence justifies its being made a part of this opinion in the margin hereof.¹ It will be noted that Moore five times repeated his plea of guilty to being the same person convicted of robbery in 1958. Moreover, he stated that to his satisfaction he had discussed the matter with his counsel. Finally, he stipulated that he had been adequately represented by counsel at the time of the first conviction.

Moore's appointed attorney did not file a timely appeal from the 1968 conviction. As a result of his first habeas corpus effort, the state courts ordered an out of time appeal. Newly appointed counsel was allowed to withdraw because he considered the appeal frivolous. Moore was then represented on appeal by two attorneys for Staff Counsel for Inmates, Texas Department of Corrections. The sole grounds for appeal were: (1) an erroneous recitation in the sentence (which was reformed), (2) evidence had been obtained by an illegal search and seizure, and (3) appellant had been subjected to an illegal pre-trial lineup. Nothing was said about Moore not being represented by counsel or that he had ineffective representation in either 1958 or 1968. The voluntary character of the 1968 guilty plea to the enhancement count was not challenged. The conviction was affirmed, Moore v. State, supra.

Our Review

In considering this habeas corpus appeal we take judicial notice of prior habeas proceedings brought by this appellant in connection with the same conviction, Wells v. United States, 318 U.S. 257, 260, 63 S.Ct. 582, 87 L.Ed. 746 (1943). This includes state petitions, Murray v. State of Louisiana, 5 Cir. 1965, 347 F.2d 825, 827, even when the prior state case is not made a part of the record on appeal, Paul v. Dade County, Florida, 5 Cir. 1969, 419 F.2d 10, 12, cert. denied, 397 U.S. 1065, 90 S.Ct. 1504, 25 L.Ed. 686. For a proper understanding of protracted litigation we may draw upon the records in all the preceding cases, Tucker v. National Linen Service Corp., 5 Cir. 1953, 200 F.2d 858, 861-62, cert. denied, 346 U.S. 817, 74 S.Ct. 28, 98 L.Ed. 343.

The First Habeas Corpus Effort

We have already noted that as a result of Moore's first habeas corpus effort in the state courts he was given an out of time appeal. From the records of that case, on file in the United States District Court, we learn that Moore was then represented by counsel other than that appearing for him when he was convicted; he was given an evidentiary hearing and testified in his own behalf.

As a result of that hearing, the State District Judge found that other than the failure to file an amended motion for a new trial and the failure to give notice of appeal "no testimony was offered in support of allegation number 5 wherein petitioner alleged ineffective counsel".

The State District Court further found that

No evidence was offered on petitioner's allegation that his punishment was illegally enhanced. The record on the hearing on this Writ reflects that the defendant stipulated as to the second count of the indictment and agreed that he was one and the same person who was convicted on the prior offenses.

Obviously, there were no allegations of coercion by trial counsel.

The State District Court further found that the punishment assessed the petitioner "is not the result of the denial of any right of the defendant's, except any right which he knowingly, intelligently and voluntarily waived".

The Second Habeas Corpus

There matters stood until Moore's out of time appeal was decided and his conviction affirmed by the Texas Court of Criminal Appeals. He then filed, in 1972, a petition for habeas corpus.

Moore contended that the 1958 conviction was obtained on a guilty plea which had not the benefit of any prior meeting or consultation with counsel. He claimed that he was taken into the courtroom where the judge shouted, "Is there an attorney in the house?" One came forward, perfunctorily read off the indictment, and Moore pled guilty. Therefore he contends the prior conviction could not be used for enhancement purposes. He further claimed that in 1968 he pled guilty and stipulated to the enhancement count only because his attorney told him that a new jury would find him guilty of it on the basis of the past court records and that he would receive an additional 15 years for perjury. These are precisely the same contentions before us now in this third habeas corpus effort.

The same state judge who heard Moore's 1969 habeas petition reviewed the 1972 claims and denied relief because "nothing new had been alleged in the petitioner's application except what has heretofore been disposed of by this Court, or heretofore judicially admitted before this Court". The Court of Criminal Appeals affirmed without a written order.

Moore then filed his petition (No. W-72-CA-29) in the United States District Court for the Western District of Texas. He alleged nine grounds for habeas relief, among which were the following: (1) that he was denied counsel at a lineup; (2) that his sentence was illegally enhanced by use of the 1958 conviction at which he received only cursory representation; and (3) that his 1968 counsel was ineffective in threatening him with an additional 15 years if he pled not guilty to the enhancement. He was represented by staff counsel for inmates at the Texas Department of Corrections.

On June 25, 1973, "after a careful examination of the records of petitioner's case", Judge Roberts, in a five page memorandum opinion, denied the petition. Based upon the evidence adduced in the 1969 hearing, Moore was found to have knowingly waived his right to counsel at the lineup. From the recorded plea colloquy petitioner's guilty plea to the enhancement count was deemed free and voluntary, thereby waiving all but jurisdictional defects relative to the 1958 conviction. A review of the trial transcript failed to disclose ineffective assistance in 1968. No appeal was taken.

This, however, did not end matters.

The Third Habeas Corpus

In 1974 Moore returned to the state courts with a third petition for habeas corpus. He again claimed that his 1958 conviction could not be used for enhancement because he was indigent, did not waive counsel, and was not represented by counsel, thereby rendering that conviction void. Ineffective assistance of 1968 counsel was again urged (1) for failure to investigate the 1958 conviction and (2) for coercing a guilty plea by threats of punishment for perjury. After reviewing the record, the state district court denied relief without a hearing and the Texas Court of Criminal Appeals affirmed without written opinion.

Moore then filed a new petition in the United States District Court alleging these grounds for relief, the same grounds raised in 1972. In his sworn habeas application, petitioner stated that, "No," he had not filed any prior...