Schneider v. Estelle, 76-2917

• Decision Date: 18 May 1977
• Docket Number: No. 76-2917,76-2917
• Citation: 552 F.2d 593
• Parties: Michael E. SCHNEIDER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 593

552 F.2d 593

Michael E. SCHNEIDER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 76-2917.

United States Court of Appeals Fifth Circuit.

May 18, 1977.

George A. Scharmen, II, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant.

John H. Hill, Atty. Gen., Max P. Flusche, Jr., Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before MORGAN and RONEY, Circuit Judges, and KING, ^* District Judge.

RONEY, Circuit Judge:

This case involves a question of law which turns on the facts of the individual case. The facts of this case are a bit different. The defendant in a state trial admitted that he was guilty of a crime, robbery, but denied he was guilty of robbery by firearm, for which he was convicted. The conviction was affirmed on appeal. Schneider v. State, No. 48,938 (Tex.Ct.Crim.App. Oct. 16, 1974). He now claims to possess newly discovered evidence that the state officer, who provided the only testimony that a firearm was used, deliberately committed perjury about this fact. A state district court, the Texas Court of Criminal Appeals, and the federal district court all denied habeas corpus relief without a hearing. Because the facts petitioner asserts, if true, could establish a denial of constitutional due process sufficient to justify issuance of a writ of habeas corpus, we remand this case to the district court for an evidentiary hearing.

An evaluation of Michael Schneider's claim requires a precise understanding of the state's case against him and his response to it. The state's chief witness was Ron Nicholson, a University of Texas campus police officer who worked in the narcotics division. He testified that one of his informers notified him that a person at the Northwest Cue Club was interested in selling narcotics. Nicholson went to the pool hall and was introduced to petitioner Schneider. Shortly after his arrival, Nicholson and Schneider left the pool hall in Nicholson's car. Schneider directed Nicholson to an apartment complex located on the outskirts of Austin. It was at this point where the stories clash.

The version of events Nicholson offered at trial is as follows: Nicholson said he refused to advance $70 to Schneider as front money for amphetamines. Schneider then left Nicholson, heading somewhere into the apartment complex. After approximately 5 minutes, Schneider returned to the vehicle and asked Nicholson if he had the money. After hesitating briefly, Schneider pulled a gun out of his coat pocket and demanded that Nicholson give him all of his money. Nicholson gave him the $70 intended for the drug purchase and also surrendered his wallet containing $23. Schneider then walked back into the apartment complex and never came back.

The only other witness called by the state was an associate of Nicholson on the University of Texas police force. This witness corroborated Nicholson's testimony to some extent. He stated that after following Nicholson to the apartment complex, he saw the passenger in Nicholson's car exit, head into the complex, and then return to the car only to head back into the complex shortly thereafter.

In response to this testimony, Schneider took the stand in his own defense. His testimony coincided with Nicholson's up to the point where the two reached the apartment complex. Schneider testified that Nicholson originally refused to front the money for the drugs, but when they arrived at the complex, changed his mind and gave Schneider the money. Schneider testified that he told Nicholson he would have to go to his source's apartment alone since his source would be outraged if he brought a stranger. According to Schneider, he took the money fully intending to steal it, and did so, by walking up the stairs to the complex and then absconding by climbing down the gutters of the apartment complex. He testified that he did not own or possess a gun on the day in question, and that he positively did not rob Nicholson at gunpoint.

The difference between the crime of which Schneider was accused and the one he admitted is this: robbery by firearm was a capital offense, while theft of $93 carried a maximum sentence of 10 years. Texas Stat.Ann. tit. 17 arts. 1408, 1421, (repealed), reprinted in Tex. Penal Code Ann. app. 687, 690 (Vernon).

Nearly two and a half months after Schneider's conviction was affirmed on appeal, William Hardin, an employee of the Northwest Cue Club, and the person who first called Nicholson to inform him that a person at the club was interested in selling narcotics, signed an affidavit which recites in part as follows:

" . . . I knew that Ron Nicholson was a narcotics agent and he had previously arranged for me to notify him if I heard of anyone wanting to sell drugs. About 20 or 30 minutes after I telephoned Ron Nicholson, he arrived at the club. This Chicano man introduced Ron Nicholson to Michael Schneider while inside the club. After a short time, Schneider and Nicholson left together. About 20 or 30 minutes after they left, I got a phone call from Nicholson. I recognized his voice, as I have talked with him numerous times before this, both in person and on the phone. He told me that Schneider had taken his money, about $95.00, and gone into an apartment and saying he would return with the "speed" but he never did. Schneider had taken the $95.00 and simply left. Nicholson wanted me to see if the girl who was with Schneider in the club was still there and to keep an eye on her, and to see if Schneider returned to the club. The girl had already left. When Ron Nicholson returned to the club he again told me how he had given...