Richardson v. State of Texas, 28711.

• Decision Date: 12 May 1970
• Docket Number: No. 28711.,28711.
• Citation: 425 F.2d 1372
• Parties: James RICHARDSON, Petitioner-Appellant, v. The STATE OF TEXAS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 1372 (1970)

James RICHARDSON, Petitioner-Appellant, v. The STATE OF TEXAS, Respondent-Appellee.

No. 28711.

United States Court of Appeals, Fifth Circuit.

May 12, 1970.

Carl Luna, Garland, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen., of Texas, Charles R. Parrett, Gilbert Pena, Asst. Attys., Gen., Austin, Tex., for respondent-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

James Richardson appeals from the denial of habeas corpus without evidentiary hearing. He alleges that the state court proceedings denied him counsel of his own choosing and denied him an examining trial, thereby depriving him of access to evidence important to his defense. A thorough consideration of the record before the district court discloses that Richardson was accorded a fair and full hearing on these issues in his prior state habeas corpus proceedings, that his claims are without merit and that the proceedings below were free of error. We affirm.

Richardson is imprisoned pursuant to a Texas burglary conviction which was affirmed on direct appeal. He subsequently sought and was granted state habeas corpus review, which was denied after a full evidentiary hearing. A petition to the United States District Court on the identical issues presented to and considered by the state habeas court ensued and was denied without an evidentiary hearing.

With regard to his first claim, the record discloses that the Texas habeas court conducted a full, fair hearing to determine the factual basis of the claim that Richardson was denied counsel of his own choosing. That record plainly furnished support for the necessary factual findings and eliminated the necessity for further evidentiary hearing in the federal court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Bauer v. Beto, 423 F.2d 1113 (5th Cir. 1970) and cases there cited; Ryan v. Wainwright, 424 F.2d 198 (5th Cir. 1970). Richardson demanded that the state trial court allow him to hire counsel of his own choosing. After three months and numerous delays, Richardson had not employed counsel and admitted that he lacked funds for such employment. It was only then that the court ordered the trial to commence with appointed counsel, but even then the court advised Richardson that if he subsequently hired an attorney his court appointed counsel would withdraw. In the face of such a record his claim regarding counsel is patently frivolous. Brown v. Pepersack, 334 F.2d 9 (4th Cir. 1964), cert. den. 379 U.S. 917, 85 S.Ct. 269, 13 L.Ed.2d 188 (1964).

Richardson's other claim that he was prejudiced by denial of an examining trial is also without merit. An examining trial is a creation of state law, the denial of which in itself, presents no substantial federal question. See Burdick v. Allgood, 270 F.Supp. 614 (E.D., La.), aff. 402 F.2d 480 (5th Cir. 1967); Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965), cert. den. 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 123 (1965). Richardson urged in the state habeas corpus court that the denial of the examining trial unconstitutionally deprived him of access to evidence. Richardson was given every reasonable...