Thomas v. Estelle, 76-4231
| Decision Date | 14 April 1977 |
| Docket Number | No. 76-4231,76-4231 |
| Citation | 550 F.2d 1014 |
| Parties | Billy Gene THOMAS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard A. Dawson, Staff Counsel for Inmates, Texas Dept. of Corrections, Ramsey Unit, Rosharon, Tex., for petitioner-appellant.
John L. Hill, Atty. Gen., Austin, Tex., W. Barton Boling, Asst. Atty. Gen., El Paso, Tex., David M. Kendall, Jr., 1st Asst. Atty. Gen., Joe B. Dibrell, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.
Appellant Thomas was convicted in 1970 upon a plea of guilty to the offense of robbery by the use of firearms and was sentenced to 25 years confinement. No appeal was taken.
Appellant has exhausted state court remedies and has been denied relief in the U. S. District Court from which he appeals. In this case the sole question for decision is whether the District Court was correct in denying Thomas' application for a writ of habeas corpus without an evidentiary hearing.
Appellant contends that his plea of guilty was not knowingly and voluntarily made since it was induced by a promise from his attorney that he would receive a 16 year sentence if he pled guilty. At all times during the proceedings he was represented by retained counsel. Appellant claims that (1) he was not informed that this was a bargain struck with the District Attorney for recommendation only, and (2) that he was not aware the trial judge was not a party to the bargain and was not bound to accept the recommendation.
It is undisputed that the District Attorney made the 16 year recommendation, but the trial court refused to accept it. It is also undisputed that a sentencing recommendation is not binding upon the court. Santobello v. New York, 404 U.S. 527, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
Appellant offers no more than his own unsupported affidavit of an unkept plea bargain. The state offers, however, the sworn statements of both the Assistant District Attorney who prosecuted appellant and appellant's trial counsel which show that an agreement was entered into that if appellant pled guilty, the prosecution would recommend a 16 year sentence, which sentence would not be binding upon the judge. The affidavit of appellant's counsel states further that appellant was advised and fully understood that the prosecution would make a recommendation only. The state court records in the case establish that the trial judge duly admonished appellant as to the effect and consequences of his plea of guilty. The appellant made no complaint to the judge at...
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Tower v. Phillips, 90-4038
...conclusively refutes Towler's claims. See Downs-Morgan v. United States, 765 F.2d 1534, 1538 n. 8 (11th Cir.1985); Thomas v. Estelle, 550 F.2d 1014, 1016 (5th Cir.1977); Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir.1975).13 District court determinations in habeas proceedings must be made......
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...of petitioner's self-serving allegations of coercion which were inconsistent with his statements at plea proceeding); Thomas v. Estelle, 550 F.2d 1014 (5th Cir. 1977) (similar). If Coronado should seek further relief in a district court, the task will be to measure his allegations against t......
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King v. U.S., 77-2242
...Court proceedings will not be considered on appeal. Anderson v. State of Texas, 5 Cir., 1975, 507 F.2d 105, 106; Thomas v. Estelle, 5 Cir., 1977, 550 F.2d 1014, 1016. 1 And even if by the wildest stretch of the imagination King's motion could be construed as having raised this issue, unsupp......
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