Santillan v. Beto, Civ. A. No. 72-H-494.
| Citation | 371 F. Supp. 194 |
| Decision Date | 15 February 1974 |
| Docket Number | Civ. A. No. 72-H-494. |
| Parties | Salvatore SANTILLAN v. Dr. George J. BETO, Director, Texas Department of Corrections. |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas |
Bertrand C. Moser, Houston, Tex., for plaintiff.
Jack Boone, Asst. Atty. Gen., Austin, Tex., for defendant.
Salvatore Santillan, petitioner in this habeas corpus action, was convicted in state court in 1969 for the unlawful possession of heroin. His punishment was assessed by the jury at life imprisonment in the state penitentiary. His conviction was affirmed on appeal. 470 S. W.2d 677 (Tex.Cr.App.1971). After exhausting his state remedies, Santillan filed a petition for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. He seeks habeas relief on the ground that he was denied his right to counsel guaranteed by the sixth and fourteenth amendments, in that his court-appointed counsel at trial was ineffective.1
Based on the evidence adduced at the evidentiary hearing conducted by this court and on the record of petitioner's state-court trial, this court concludes that the counsel appointed to represent him in state court was ineffective. The following constitutes this court's findings of fact and conclusions of law.
"It is the particular facts in each case — the actual conduct of the attorney with relation to his client from arrest to final judgment — that determines whether the attorney has provided the constitutionally required effective assistance of counsel." Chalk v. Beto, 429 F.2d 225, 226 (5th Cir. 1970).
With this in mind, this court reluctantly embarks on the mission of telling a factual situation it finds embarrassing to the ideals of the adversary system.
On October 3, 1967, several Houston police officers, armed with a search warrant, entered the home of Leonard Duarte. There they found a quantity of heroin and arrested Duarte, his common-law wife, Janie Campos, Joe Coronado, Conception Santillan, and her husband, Salvadore Santillan. Only Duarte and the petitioner were charged with possession of heroin. It was the police officers' testimony at trial that several packages of heroin were found on a table in one room and that several other packages of heroin were found in petitioner's pocket when he was searched in another room. Although petitioner never had an opportunity to present his side of the story, he maintains that no heroin was found on him.
After being released on bond, two burglary and two felony theft charges were filed against petitioner.
Petitioner filed an affidavit to the effect that he was too poor to hire an attorney. Thereafter, on April 12, 1968, an attorney was appointed to represent him on the two burglary and two felony theft charges. The appointed attorney could not remember being officially appointed to represent petitioner on the possession charge but explained that it was the practice at that time that an attorney appointed to represent an accused on one charge would usually represent him on any other charge that may be pending against him. There is no record of an appointment on the possession charge.
The attorney talked to the petitioner at the time of the examining trial but discussed only the burglary and theft cases. Approximately thirty days later the attorney talked to petitioner at the Texas Rehabilitation Center, but there was no discussion of the heroin case. The next meeting was in the "hold-over cell" at the Harris County jail. It lasted for approximately fifteen minutes. At this meeting the attorney informed the petitioner that he had worked out a plea bargain on the burglary and theft charges — a plea of guilty in exchange for a recommendation by the prosecutor for a ten-year sentence. Petitioner told the attorney that if he could get the heroin possession case added to the agreement, he might accept it. At that time the attorney had no knowledge of the heroin case.
On October 31, 1968, petitioner wrote a letter to his attorney stating in part:
Although unclear from the testimony when the next meeting was held, petitioner testified that at that meeting he told his attorney that contrary to the police officer's testimony no heroin was found on him and that he gave the attorney the names and telephone numbers of witnesses who would corroborate this defense.
The next meeting petitioner had with his attorney was on the day of trial, February 25, 1969. At this time, petitioner was still under the impression that he was going to trial at that time on the burglary and theft charges. He was that morning informed that he was to stand trial on the heroin possession case. He asked his attorney whether he had contacted his witnesses. The attorney said that he could not locate Duarte and had heard that he had jumped bond and was in Canada. Petitioner told him that this was not true because he had seen Duarte within the last three or four days at the rehabilitation center.2 Asked about the other witnesses, the attorney said that he would try to contact them during the court's recess.
The attorney testified that he tried to call one of the witnesses (Janie Campos) but could not find her. Petitioner stood trial with no witnesses in his behalf. The attorney did not ask the trial judge for a continuance in order to locate the witnesses.
Duarte testified at the habeas corpus hearing that had he been called as a witness at petitioner's trial he would have testified that the heroin the police testified was found in petitioner's pocket was actually found by the police on a table in a different room from where petitioner was arrested.3
No motion to suppress the heroin was made, and when the state offered into evidence the heroin (without which the state admittedly would not have had a case against petitioner) there was no objection made.
Excluding the noon recess, the entire trial lasted less than two hours. After a motion for acquittal was overruled, the defense rested without calling a witness. Although petitioner wanted to testify in his own behalf in order to contradict the police officer's testimony and to place before the jury his only defense, he was persuaded by his attorney not to testify. The attorney explained at the habeas corpus hearing that he persuaded petitioner not to take the stand because he was afraid that the prosecution, through impeachment, would inform the jury that petitioner had been indicted for burglary and theft and that he had been acquitted of murder. By statute, such evidence is inadmissible in a Texas criminal trial.4
The jury deliberated only eleven minutes before returning a verdict of guilty and deliberated but twenty-six minutes before assessing punishment at life imprisonment. It is also noted that even though petitioner had not been before convicted of a felony, his attorney did not inform the petitioner that he qualified for probation nor did he file the required motion for probation. Article 27.02, Vernon's Ann.C.C.P.; Article 42.12 § 3a, Vernon's Ann.C.C.P.
Petitioner was sentenced March 14, 1969, at which time petitioner's attorney gave notice of appeal to the Court of Criminal Appeals. An entire year lapsed before the attorney filed a pauper's oath and requested a transcript for purposes of appeal March 9, 1970. During this time petitioner wrote his attorney on several occasions (although the attorney has no record of the letters)— no letter was answered. Finally on April 8, 1970, petitioner wrote a letter to the trial judge informing him that his attorney would not answer his letters. Seven days later the attorney was relieved of representation of petitioner and another attorney was appointed.
Petitioner's court-appointed attorney at trial made no effort to and did not investigate the scene of the offense, interviewed none of the witnesses given him by petitioner,5 and never talked with any member of petitioner's family, even...
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Starkweather v. Smith
...v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992); United States v. Poe, 352 F.2d 639, 640 (D.C.Cir.1965); see also Santillan v. Beto, 371 F.Supp. 194, 196 (S.D.Tex.1974). Of course, Starkweather has not argued that his counsel's advice was objectively incorrect, nor would such an argument be......
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Scales v. Estelle, Civ. A. No. 73-H-729.
...entirety this court concludes that petitioner's attorney did render reasonably effective assistance of counsel. Compare Santillan v. Beto, 371 F.Supp. 194 (S.D.Tex.1974). Accordingly, it is ordered, adjudged, and decreed that the petition for writ of habeas corpus be, and the same is hereby......