Pennington v. Beto, 29731.
| Citation | 437 F.2d 1281 |
| Decision Date | 05 February 1971 |
| Docket Number | No. 29731.,29731. |
| Parties | Ulis Lando PENNINGTON, Petitioner-Appellant, v. Dr. George BETO, Director, Department of Corrections, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
David McAtee, Dallas, Tex., for petitioner-appellant; Thompson, Knight, Simmons & Bullion, Dallas, Tex., of counsel.
Crawford Martin, Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before RIVES and SIMPSON, Circuit Judges, and NICHOLS*, Judge of the Court of Claims.
We review on this appeal the denial of habeas corpus relief to a Texas state prisoner, Ulis Lando Pennington, after hearing by the federal district court. We consider the hearing held to have been overly restricted and the findings thereon inadequate. Accordingly, the case is remanded for further proceedings in the district court.
The substance of appellant Pennington's claim is that Texas courts denied him Fourteenth Amendment due process of law because his court-appointed trial counsel was ineffective to the degree that his trial and conviction constituted a travesty of justice.
Pennington was awakened and arrested on January 13, 1966, while sitting in the front seat of a parked automobile, later proved to be stolen. The car was parked off the traveled portion of a highway near Dallas, Texas. In April 1966 he was convicted in a Dallas Criminal District Court for theft of corporeal personal property valued at over $50.00 (the automobile). The state proved that appellant then had two previous felony convictions, and he was sentenced to life imprisonment as an habitual criminal.1
Pennington sought to account for his presence in the car by relating the following. He claimed that at 8:30 a. m. on January 12, 1966, he went to the Pastime Bar in Dallas, Texas. While waiting to meet his estranged wife he began drinking steadily. He entered into conversation and had drinks with a man in the bar who identified himself only as a construction worker for Cecil Ruby Company. Appellant and the stranger left the bar in a car which the unknown man said belonged to him. Pennington rode on the passenger side of the automobile. During the trip to the next bar, appellant asserts that he took several drinks of whiskey and became unconscious. When he awoke he was sitting in the automobile and the police were present. Pennington was initially charged with being drunk in the automobile. Later, when the authorities discovered that the car was stolen, the charges were changed to theft.
A Dallas attorney was appointed by the court to represent the appellant. Pennington contends that he related his story to counsel, as well as a description of the unknown man and the information that the man was thought to work at the Cecil Ruby Company. It is also asserted that Pennington told his attorney that the bartender at the Pastime, a man named George, could verify the fact that the petitioner left the bar with the unknown man. Pennington also gave the attorney the names of several relatives located at Greenville, Texas, that might serve as character witnesses.
The court-appointed attorney was a 1964 law school graduate, admitted the same year to the Texas bar. He was an F.B.I. special agent for eight years before he entered law school. At the time of petitioner's trial in 1966, the attorney had been practicing law generally from 1964 to 1966 with emphasis in the area of criminal law. At the time of this appointment he had handled approximately 15-20 felony trials.
The following testimony of the appellant at the federal habeas hearing is relevant to our inquiry:
Q How many times did Mr. Harrison see you prior to trial?
A I recall three times, sir.
Q And about how long, all together, did he spend with you during all those three times?
A Not no longer than fifteen minutes.
Q Fifteen minutes apiece?
A Not any longer, maybe twenty minutes on some of them and fifteen on the others.
Q Did you relate to Mr. Harrison your story about the man at the bar and the car?
A Yes, sir.
Q Did you describe this man to Mr. Harrison by way of working for Cecil Ruby?
A Well, I tried to, he told me there was no use, he didn't think it would do any good.
Q Did you tell him about George, the bartender?
A Yes, sir.
Q Did you ask him to contact George, the bartender?
A Yes, sir, I did.
Q Were these people ever subpoenaed as witnesses in your behalf?
A No, sir. (Tr. pp. 12-13)
* * * * * *
Q Did you ever give Mr. Harrison a description, a physical description of the man that you say was driving the car in which you were subsequently found and charged with stealing?
A Not a full description, I tried to, but he stopped me and he said there would be no use and it wouldn't do any good anyway.
Q Do you remember how much of a description you managed to give him?
A Yes, sir, after I told him the man's age, and I told him also his name, you know, what I mean, the name of the man, not the name of the man that drove the car, but who he kind of favored.
Q Did you tell Mr. Harrison where the man was employed that you say was driving the car?
A Yes, sir.
Q I forgot, where was that?
A Cecil Ruby Company.
MR. FENDER: I didn't understand, what was that?
MR. McATEE: Cecil Ruby Company.
THE WITNESS: That's what he told me. (Tr. pp. 37-38)
Also germane to the issue is the following testimony of the court-appointed attorney:
Q Fine. Now, would you relate to me the substance of your first meeting with Mr. Pennington?
A Yes, sir. As I recall, I received a telephone call from Miss Romey Bird, I see from going through my file here, stating that I had been appointed to Mr. Pennington's case. And in a few days after I received the telephone call, I went to visit with Mr. Pennington in the County Jail. And I visited with him on approximately three to five occasions prior to the trial in question.
Q You can't recall whether it's three or five?
A Well, I wrote a letter to Mr. Pennington, if I may just give you this. Mr. Pennington wrote a letter to the Grievance Committee, and I was contacted by Mr. Burleson, and I reconstructed the facts in a letter to Mr. Burleson, and in reading my letter, I visited with him, as I recall, on March 4th, March 31st and April 25th, prior to the trial, and I believe I visited with him on one or two other occasions.
Q During these meetings, what did Mr. Pennington relate to you as to his version of the events surrounding the alleged automobile theft?
A From my original notes which I have dated March 7th, 1966, Mr. Pennington advised me that he was a 35-year-old white male, that he was single and had been divorced approximately three months from his wife, Elizabeth Thomas. He stated to me that his first wife was a Lula Mae Buchanan, and they had a boy named Ricky Lee, age 7. He advised me on the night that he was arrested or the night previous to the date he was arrested, he and his ex-wife had had an argument, and they had been drinking at the Pastime Lounge on Ervay Street. He stated he and his ex-wife had had a fight, and she got in a cab, and he tried to follow her, but he couldn't. He stated he went back to the tavern, and he was very speculative as to what happened, because he was drunk. At this time he met someone who he didn't know, some friend who asked him to go someplace on Harwood. He recalled getting in this other person's car. At this time this unknown friend asked him if he wanted a drink from his pint, and Mr. Pennington stated he had two or three good drinks, and then blacked out. The next thing he remembered was sitting in the car beside the highway, and the police picked him up, and he didn't recall getting in the car, and he was then charged with auto theft. He advised me he had two previous burglaries and that he had served time in the penitentiary for those. He told me a man by the name of George at the Pastime Tavern could verify that he was drinking there and had left with another man, and that's all he recalled.
Q Did you seek to get in touch with the man that drove the car, and George, the bartender at the Pastime Tavern?
A Well, I had no description of George, I had no idea who the other person was in the car. I did call the Pastime Lounge and talk to a person there, and as I recall, they didn't know Mr. Pennington. I asked about his ex-wife and as they recalled, she very seldom came in there, and they didn't know where I could get in touch with her, and Mr. Pennington did not know where she lived.
Q Is it your testimony then that you did not find George, the bartender, nor speak with him?
A It wasn't George the bartender, just some man named George.
Q Did you speak with a man named George?
A Mr. Pennington told me he was with some man named George, I never did find out.
Q Okay. What witnesses, if any, did you talk to prior to the trial?
A None.
A None.
Q Did you serve a subpoena on anyone?
A No, sir, I didn't.
Q What other steps and investigation did you make other than the ones you have outlined to me?
A Mr. Pennington told me about some friends, cousins that lived in, I believe it was, Greenville, and although they had no relevance to the case, I did try to call them. I called a number of numbers in Greenville and I talked to two or three friends of his at Greenville who could not come to the trial. I told them of the seriousness of the charge, and if they could possibly come to Dallas, to come to Dallas and appear as character witnesses in his behalf or to help him in some way, and they just weren't really interested.
Q Did you not then decide or did you then decide not to subpoena these people although they were needed as character witnesses?
A I really didn't see as how it would do any good.
Q Would you clarify that, Mr. Harrison? Do any good as what?
A They knew nothing about the case.
Q Did they know...
To continue reading
Request your trial
-
West v. State of Louisiana
...on the docket of this Court. Fitzgerald v. Beto, Director, argued and submitted on March 13, 1973. 9 See also Pennington v. Beto, 5 Cir. 1971, 437 F.2d 1281, 1285-1286; Caraway v. Beto, 5 Cir. 1970, 421 F.2d 636, 637; Brown v. Beto, 5 Cir. 1967, 377 F.2d 950, 957-958; cf. Williams v. United......
-
Washington v. Watkins
...Cir. 1977); Mason v. Balcom, 531 F.2d 717, 724 (5th Cir. 1976); Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972); Pennington v. Beto, 437 F.2d 1281, 1285 (5th Cir. 1971); Chalk v. Beto, 429 F.2d 225, 227 (5th Cir. 1970); King v. Beto, 429 F.2d 221, 224 (5th Cir. 1970), cert. denied, 401 U.S......
-
Davis v. State of Ala.
...Thomas v. Estelle, 588 F.2d 170, 171 (5th Cir. 1979); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978); Pennington v. Beto, 437 F.2d 1281, 1285 (5th Cir. 1971). See also Sand v. Estelle, 551 F.2d 49 (5th Cir. 1977), Cert. denied, 434 U.S. 1076, 98 S.Ct. 1267, 55 L.Ed.2d 783 (197......
-
U.S. v. Decoster
...1974); Johns v. Perini, 462 F.2d 1308 (6th Cir.), cert. denied, 409 U.S. 1049, 93 S.Ct. 519, 34 L.Ed.2d 501 (1972); Pennington v. Beto, 437 F.2d 1281 (5th Cir. 1971); Andrews v. United States, 403 F.2d 341 (9th Cir. 1968); Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849......