Smith v. Estelle, 76-4185

• Citation: 562 F.2d 1006
• Decision Date: 11 November 1977
• Docket Number: No. 76-4185,76-4185
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: James Haskel SMITH, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director Texas Department of Corrections, Respondent-Appellee. Summary Calendar. *

Page 1006

562 F.2d 1006

James Haskel SMITH, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director Texas Department of

Corrections, Respondent-Appellee.

No. 76-4185

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Nov. 11, 1977.

Bertrand C. Moser, Houston, Tex., for petitioner-appellant.

James H. Smith, pro se.

John L. Hill, Atty. Gen., John Pierce Griffin, Asst. Atty. Gen., Austin, Tex., David M. Kendall, 1st Asst. Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Chief, Enforcement Div., Austin, Tex., for respondent-appellee.

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

Before COLEMAN, GODBOLD, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

The appellant in this case, James Haskel Smith, is presently serving a life sentence imposed by the state of Texas following Smith's jury trial and conviction under that state's habitual offender statute. ¹ Since Smith's incarceration began in 1968, he has repeatedly invoked the jurisdiction of the Texas courts in an attempt to secure his release. In fact, the Texas courts have indicated that they will not entertain further pleadings from Smith unless he is able to raise issues which have not been and could not have been presented in his prior petitions. Thus stymied, Smith has turned to the federal courts in his efforts to secure his release.

Smith petitioned the court below for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1970). Initially, his pro se petition purported to state four grounds for habeas relief. The district court appointed counsel and granted Smith an evidentiary hearing on his claim. By the time of the hearing, these claims had been narrowed to two issues of constitutional significance: (1) whether he was forced, over his objections, to stand trial in prison clothing; and (2) whether certain plea negotiations collateral to his habitual-offender conviction resulted in the denial of his right to appeal that conviction. Each of these points was resolved against Smith in the proceedings below. On this appeal, he has (quite appropriately) abandoned the jail-clothes issue, ² and relies solely on the alleged denial of his right to appeal his criminal conviction as his foundation for habeas relief. On that point we agree with the district court that no writ should issue, and accordingly affirm.

The pertinent facts are few. Smith's conviction under the Texas habitual offender statute, and the subsequent mandatory life sentence, came at a time when Smith was experiencing considerable difficulty with the Texas authorities. In addition to the indictment upon which he was tried and convicted, there were ten indictments outstanding against him. Nine of these involved violations of the Texas forgery laws; the tenth alleged another forgery offense and an accompanying violation of the same habitual offender statute under which Smith had been convicted and sentenced.

After Smith's conviction, his court-appointed attorney entered into plea negotiations with the state prosecutor in an attempt to dispose of the ten indictments outstanding. These negotiations resulted in Smith's entry of guilty pleas to four of the simple forgery indictments; the remaining six including the habitual offender indictment were dismissed upon the state's motion. On the four offenses to which Smith pleaded guilty, the state sentenced him to five-year terms to run concurrent with the life sentence imposed following his trial. As an additional term of the plea agreement, Smith dismissed his appeal of his conviction under the habitual offender statute.

Smith now takes issue with the results of these plea negotiations. More particularly, he contends that the state effectively denied him his right to appeal the conviction which produced the life sentence. In this connection, he makes two contentions: one factual, the other legal. The factual contention is that he did not voluntarily waive his state appeal, but was effectively forced into dismissing the appeal by the state's frustration deliberate or otherwise of his efforts to proceed on that appeal. The legal contention is premised upon the assumption that he clearly gained nothing in the plea negotiations from dismissing his appeal, since he was already sentenced to serve the maximum period of incarceration (i. e., life) which the state could impose upon the ten outstanding indictments anyway. From this premise, he argues that his plea agreement, and the concomitant dismissal of his state appeal, were necessarily defective on a theory akin to the "failure of consideration" doctrine of contract law.

Before we reach the merits of Smith's case, there is a threshold problem concerning Smith's failure to exhaust state remedies on the claim asserted before us. The record indicates that Smith has never presented any Texas court with the claim asserted before us today. We see...