United States v. Walker

• Citation: 340 F.2d 6
• Decision Date: 18 January 1965
• Docket Number: No. 21295.,21295.
• Parties: UNITED STATES of America ex rel. Thomas GOINS, Appellant, v. Victor G. WALKER, Warden, Louisiana State Penitentiary, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

340 F.2d 6 (1965)

UNITED STATES of America ex rel. Thomas GOINS, Appellant, v. Victor G. WALKER, Warden, Louisiana State Penitentiary, Appellee.

No. 21295.

United States Court of Appeals Fifth Circuit.

December 16, 1964.

Rehearing Denied January 18, 1965.

James D. McGovern, Jr., New Orleans, La., for appellant.

John M. Currier, Asst. Atty. Gen., New Orleans, La., Jack P. F. Gremillion, Atty. Gen., Baton Rouge, La., M. E. Culligan, Asst. Atty. Gen., New Orleans, La., John E. Jackson, Jr., Asst. Atty. Gen., for appellees.

Before RIVES and WISDOM, Circuit Judges, and MORGAN, District Judge.

RIVES, Circuit Judge.

This appeal is from another denial of habeas corpus to Thomas Goins, who is under a death sentence for the murder of Anthony Meyers on April 1, 1955. The murder for which Goins was convicted was described by the Supreme Court of Louisiana in its opinion affirming his conviction and sentence:

"* * * it is well that we briefly recite the principal facts relating to the crime charged to appellant.

"At approximately 7:30 o\'clock P.M. on April 1, 1955, appellant and Benjamin Mackey forced Thomas Hulings (known as Dusty), a 16 year old Negro, to steal an automobile for them. While driving this car at about 9:00 o\'clock the same night they came upon one Francisco (or Frank) Imperatore, an Italian citizen, whom they attempted to rob with force of arms. When Imperatore began running he was shot by the defendant with a .38-caliber revolver. And as he staggered Goins and Mackey drove away.

"About ten or fifteen minutes later they approached the victim in this case, Anthony Meyers, who was walking. Goins alighted from the car and went to him for the purpose of committing an armed robbery. Meyers quickened his pace and attempted to flee; but, as he moved away, the defendant shot him twice in the back. While the victim lay on the sidewalk Goins took a wallet and some change from his pocket.

"Shortly after the defendant and Mackey had left the scene Dusty Hulings, who meanwhile had stolen another automobile, was observed. They chased him about twenty blocks (he thinking that they were police officers) until he abandoned the car he was driving. The defendant and Mackey, thereupon, appropriated it; and while driving around in this second vehicle they were apprehended by a motorcycle policeman (Henry Cerise). Mackey, obviously to prevent arrest, fired two ineffective shots at the officer from the above mentioned revolver.

"Some minutes later defendant and Mackey abandoned the second automobile (when its engine failed) and stole a third. In it they drove to Sander\'s barroom where the defendant told one Lawrence Warden that he had just shot a man whom he then thought to be dead."

State v. Goins, 1957, 232 La. 238, 94 So. 2d 244, 248.

The history of the long litigation is succinctly stated by the district court in its opinion denying Goins' last application for habeas corpus:

"* * * Goins was convicted of murder on October 26, 1955, after trial by jury in a State Court of Louisiana, and on March 14, 1956, the death sentence was imposed. His conviction was appealed to the Supreme Court of the State of Louisiana, which Court on February 25, 1957, affirmed the conviction and sentence, 232 La. 238, 94 So.2d 244 (Rehearing Denied April 1, 1957). The United States Supreme Court denied certiorari on October 14, 1957, 355 U.S. 847, 78 S.Ct. 74, 2 L.Ed.2d 57. Relator then applied to this Court for the issuance of a writ of habeas corpus on November 14, 1957, after the execution date had been set for November 29, 1957. On November 27, 1957, this Court, as then constituted, issued a stay of execution and issued an order to respondents to show cause why a writ of habeas corpus should not issue. Thereafter, on December 4, 1957, the writ of habeas corpus was denied, and the stay order previously issued was recalled and rescinded, without written reasons being assigned therefor. An appeal was taken, and on December 12, 1957, the Court of Appeals, Fifth Circuit, issued a stay order and remanded the matter back to the District Court for hearing on relator\'s petition. 5 Cir., 250 F.2d 128. The District Court then held a full hearing on relator\'s petition, and on April 1, 1958, for written reasons assigned, denied the writ of habeas corpus. D.C., 162 F.Supp. 256. Relator then filed a motion for new trial based upon allegations of newly discovered evidence, which motion was denied by this Court, without hearing, on November 18, 1959. However, prior to the time the motion for new trial had been filed, relator had appealed from this Court\'s ruling of April 1, 1958, and on December 4, 1959, the Court of Appeals, Fifth Circuit, affirmed the District Court ruling and in effect adopted as their own the reasons assigned on April 1, 1958, by the District Court. 5 Cir., 272 F.2d 148. Relator also appealed the District Court\'s dismissal of his motion for a new trial based upon newly discovered evidence, and on January 2, 1962, the Court of Appeals, Fifth Circuit, remanded the case to this Court for hearing on relator\'s motion for new trial. It is in connection with this remand that the present hearing was held by this Court on April 19, 1963."

United States ex rel. Goins v. Sigler, Warden, E.D.La.1963, 224 F.Supp. 687, 688.¹

In discharging a writ of habeas corpus on April 1, 1958, Judge Skelly Wright had commented:

" * * * On August 10, 1955, counsel was appointed to represent Goins by the state court judge before whom he was to be tried for murder. At that time the court appointed Goins\' present counsel, Mr. James D. McGovern, Jr., whose zeal and industry in representing Goins without pay during this long litigation is a credit to the Bar."

United States ex rel. Goins v. Sigler, Warden, E.D.La.1958, 162 F.Supp. 256, 258.

We note to this attorney's further credit that more than six years after Judge Wright's commendation there has been no flagging of his loyalty, zeal and industry in behalf of his client. Indeed, in brief and upon oral argument he has indicated that, if not successful on the present application, there may be a new habeas corpus proceeding in reliance upon Ker v....