Parker v. Estelle

• Decision Date: 24 October 1974
• Docket Number: No. 73-3630.,73-3630.
• Parties: J. Loyd PARKER, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 625 (1974)

J. Loyd PARKER, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.

No. 73-3630.

United States Court of Appeals, Fifth Circuit.

August 5, 1974.

Rehearing and Rehearing Denied October 24, 1974.

Arthur Mitchell, Stephen M. Orr, Austin, Tex., for petitioner-appellant.

Robert C. Flowers, Max P. Flusche, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

Rehearing and Rehearing En Banc Denied October 24, 1974.

CLARK, Circuit Judge:

On May 3, 1963, the day after his father was found dead, petitioner J. Loyd Parker, Jr. confessed to the killing,¹ and on May 17, 1963 he was indicted for murder. The principal issues from the inception of the proceedings were Parker's sanity at the time of the act and his competency to stand trial. Pursuant to an agreement between counsel, a hearing was held at which Parker was found incompetent to be tried and was committed to Rusk State Hospital until he recovered his sanity. In February 1969, after spending six years in Rusk, he was released; and on May 19, 1969 a jury found that he was competent to be tried. In June 1969, represented by retained counsel, Parker was convicted by another jury of premeditated murder and sentenced to 10 years imprisonment. At the June trial the prosecution, somewhat surprisingly, put on a brief case of circumstantial evidence linking Parker to commission of the crime.² Although Parker's attorneys had been ready with witnesses, they elected not to present an insanity defense and thus avoid potentially damaging rebuttal evidence they knew to be in possession of the State. After an affirmance of his conviction by the Texas Court of Criminal Appeals, 457 S.W.2d 638 (1970), Parker filed his first federal habeas petition, which was dismissed for lack of exhaustion. He then filed a petition in the Texas court system, but relief was denied on the merits after a full evidentiary hearing by the state habeas judge; and his decision was affirmed by the Texas Court of Criminal Appeals, 485 S.W.2d 585 (1972). On the instant petition which followed, the district court found the facts fully developed in the State habeas hearing and denied relief on the merits of all of Parker's contentions. We affirm.

Parker urges thirteen contentions before us. Three of them revolve around his bare factual allegation that he did not receive credit on his 1969 sentence for the six years spent at Rusk State Hospital after the 1963 jury found him incompetent to be tried. He alleges that this disallowance violated (1) his due process rights,³ and (2) his right not to be twice punished for the same offense, see Wright v. Maryland Penitentiary, 429 F.2d 1101, 1103 (4th Cir. 1970); and denied him equal protection.⁴

Assuming arguendo, that detention and treatment at Rusk can be equated with punitive custody or punishment, this circuit distinguishes between credit for pre and post-sentence custody. Thus, in Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970), and Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971), we held that due process requires a state to give credit for time spent in custody after conviction since denied credit could operate to penalize the right of appeal, but in Gremillion v. Henderson, 425 F.2d 1293 (5th Cir. 1970), we held that "there is no federal constitutional right to credit for time spent prior to sentence." However, the plenary scope of Gremillion has been qualified by Hart v. Henderson, supra, and Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972), which hold that, although there is no absolute right to pre-sentence detention credit, a denial of such credit due to a defendant's poverty (e. g., the financial inability to make bail) or to some other constitutionally impermissible basis will not be allowed to extend a state prisoner's sentence beyond the maximum prescribed for the crime. See also, Cobb v. Bailey, 469 F.2d 1068 (5th Cir. 1972) and Brown v. Beto, 359 F.Supp. 118 (S. D.Tex.1973). Although Parker alleges no such unconstitutional basis, we do not rest our decision on this lack.

In federal cases in which the sentence imposed plus time spent in pre-sentence custody totals less than the maximum for the offense, there is a conclusive presumption that the sentencing judge gave credit for the pre-sentence custody. See, e. g., Bryans v. Blackwell, 387 F.2d 764 (5th Cir.), cert. denied, 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421 (1967). Rodriguez v. Blackwell, 433 F.2d 993 (5th Cir. 1970); Hyler v. Alexander, 423 F.2d 1215 (5th Cir. 1970), and Landman v. Mitchell, 445 F.2d 274 (5th Cir.), cert. denied, 404 U.S. 1022, 92 S.Ct. 695, 30 L.Ed.2d 671 (1971). Application of a concomitant presumption is required here. Parker elected to have the jury determine his punishment. Prospective jurors were informed on voir dire that he had spent six years at Rusk undergoing treatment while incompetent to be tried. At the punishment hearing defense counsel specifically urged the jury to consider these six years in determining punishment, and the jury returned a sentence of only ten years for premeditated murder, an offense which carries a permissible punishment of imprisonment for any number of years or life. Moreover, the state habeas judge, who also conducted the trial and the punishment hearing, found "the jury was permitted to take into consideration the six years spent in Rusk by petitioner and the jury did take this into consideration and that was the reason for such minimum punishment of ten years in this case." In these circumstances, we reject Parker's bald assertion that he was denied credit for the time spent at Rusk and with it fall his related constitutional arguments.

Another set of arguments concerns the fact that no jury has ever resolved the question of Parker's sanity at the time of the offense. Relying on the testimony of the 1963 district attorney that he believed Parker insane at the time of offense and the fact that several psychiatrists were willing to testify to this, Parker asserts numerous constitutional errors. He alleges that his retained counsel's failure to submit this issue either to the competency hearing jury⁵ or to the convicting jury, coupled with the fact that the prosecutors and the trial judge knew "of the defense and yet did nothing to see that it was submitted to either jury," deprived him of his Sixth Amendment right to effective assistance of counsel both in 1963 and 1969. Additionally, he argues that the fact that the sanity issue was not submitted at the 1963 competency hearing of itself was a denial of due process.⁶ and that it denied him due process for the state to allow a conviction "knowing" of his insanity. As to the ineffective assistance claims,⁷ the state habeas judge's findings that the decisions not to submit the sanity issue to either jury were legitimate tactical ones made by competent attorneys are fully supported by the record, see 28 U.S.C. § 2254(d), and are in full compliance with our "reasonably likely to render and rendering reasonably effective assistance" standards.⁸See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); citing Mac-Kenna v. Ellis, 280 F.2d 592 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1960). Nor was Parker deprived of due process because the sanity question was not submitted to the jury in 1963. Parker argues that Article 932b of the Texas Code of Criminal Procedure in force in 1963, required that both issues be submitted to the jury at the competency hearing, and since he had been determined to be incompetent at the time of the hearing, he was of necessity incompetent to waive this statutory right. Even assuming we could find the state had an affirmative duty under its statute to submit the issue, the right remains purely one created by state statute and not a matter of constitutional mandate. Hence, this claim is not cognizable on federal habeas corpus. As for the argument that the state should not have tried to convict Parker, the fatal flaw is the assertion that the prosecutors "knew" Parker was insane. While the testimony at the state habeas hearing indicates that the district attorney at the time and some psychiatrists believed Parker insane, it also shows that the assistant district attorney who was primarily responsible for the case thought otherwise. Since the issue was doubtful and since it is a defendant's burden to present a prima facie case to overcome the presumption of sanity, Parker can only succeed by establishing that his attorneys represented him ineffectively by not presenting such a claim. We have previously rejected this very contention.

Parker further asserts that the trial judge's denial of bail coupled with the prosecutor's pretrial assertion that the state would seek the death penalty if Parker challenged this denial by way of habeas corpus, operated to deprive him of his Eighth Amendment right to be free from excessive bail, and to deny him due process. The prosecutor's conduct, which gave the judge's ruling a macabre finality, might raise constitutional questions if presented to us in the proper context. However in the absence of any allegation of prejudice⁹ other than increased pretrial custody, we hold that both issues are now moot.¹⁰ Parker is now confined by virtue of a conviction in no way tainted by these alleged illegalities. See, e. g., Smith v. Warden, 280 F.Supp. 827 (D. Md.1968), and Sheldon v. Nebraska, 401 F.2d 342 (8th Cir. 1968).

Parker next argues that the state obtained a crucial correction in the statement of Julian Morales by use of Parker's admittedly invalid confession, and consequently truthful testimony from Morales was proscribed by the so-called "fruit of the poisoned tree" principle of Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1919).¹¹ The record indicates that Morales, who was the gardener on the elder...