Walker v. Beto
| Decision Date | 27 December 1967 |
| Docket Number | No. 23804.,23804. |
| Citation | 387 F.2d 626 |
| Parties | Smith Thomas WALKER, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marian Rosen, Houston, Tex., for appellant.
Thomas H. Routt, Asst. Atty. Gen., Houston, Tex., Lonny F. Zwiener, Robert E. Owen, Asst. Attys. Gen., Crawford C. Martin, Atty. Gen. of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. to Atty. Gen., R. L. Lattimore and Howard M. Fender, Asst. Attys. Gen., Austin, Tex., for appellee.
Before BELL, COLEMAN and GODBOLD, Circuit Judges.
On April 12, 1946, on his plea of guilty in the state court, Smith Thomas Walker was sentenced to serve from five to fifty years for the offense of robbery by assault.1 His application for habeas corpus in the United States District Court was not filed until August 31, 1965, nineteen years later. In the meantime, Walker had been out of prison on parole for eighteen months in 1962-1963. As might be expected after such a lengthy delay from 1946 to 1965, with no complaint raised, the judges, lawyers, and other officials concerned in the 1946 plea and sentence, with the possible exception of "Mr. Kirk", appointed defense counsel, are either dead or cannot now be located.
In this situation Walker relied solely on his own testimony at the evidentiary hearing granted by the District Judge. The burden was on him to show by a preponderance of the evidence that he was entitled to the writ, Williams v. Beto, 5 Cir., 1965, 354 F.2d 698, Welch v. Beto, 5 Cir., 1966, 355 F.2d 1016. The District Judge, as the fact finder, was not required to believe the uncorroborated testimony of the petitioner, even though no evidence to the contrary had been (or could have been) adduced, Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61 (1945). This record reveals that in crucial instances Walker's testimony was vague, indefinite, self contradictory, and refuted by the official records.
Appellant contends that his plea of guilty and the consequent sentence are invalid in that (1) he was denied adequate counsel, (2) he was denied counsel of his own choice, (3) the guilty plea was coerced by false promises of leniency emanating from the District Attorney, (4) although pleading guilty, he was entitled to be confronted by the witnesses and to see the evidence against him, and (5) petitioner did not waive a jury trial in the manner and form required by the Texas statutes.
Faced as he was with unbridgeable factual gaps, the record nevertheless reveals that the District Judge gave this petitioner a full evidentiary hearing. We are convinced that the record, including credibility choices and the legal questions involved, amply supports the denial of relief on Grounds 2, 3, 4 and 5, above enumerated.2 In these respects the Judgment of the Court below will be affirmed.
We find it necessary, however, to vacate that part of the Judgment dealing with the charge that Petitioner was denied the effective assistance of counsel. This result is dictated by an odd circumstance, perhaps by an inadvertence in the drafting of the Court's findings of fact. The finding was that "Said counsel Mr. Kirk furnished effective counsel and representation to Petitioner". There is no testimony in the record to support this affirmative finding. We surmise that the Court...
To continue reading
Request your trial
-
Ritter v. Smith, Civ. A. No. 83-0457-H.
...or by state court record, e.g., Burston v. Caldwell, supra; Dempsey v. Wainwright, 471 F.2d 604, 607 (5th Cir. 1973); Walker v. Beto, 387 F.2d 626, 627 (5th Cir.1967). In resolving the discrepancy between the testimony of the petitioner and other witnesses at the hearing, this Court has for......
-
Perry v. Crouse
...appellant's testimony, even if it was uncontradicted. See Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61; Walker v. Beto, 387 F.2d 626, 627 (5th Cir.). Nevertheless, the dismissal of appellant's testimony in the federal court hearing as legally insufficient under State law was ......
-
Lee v. Henderson
...was not required to accept it as fact. See United States ex rel. Liss v. Mancusi, 427 F.2d 225, 227, n. 4 (2d Cir. 1970); Walker v. Beto, 387 F.2d 626 (5th Cir. 1967). As was the case in Liss, the circumstances surrounding petitioner's statement to the police indicate that the statement was......
-
Goins v. Brierley
...313 F.2d 483, 487 (4th Cir.), cert. denied, Pepersack v. Hall, 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032 (1963); Walker v. Beto, 387 F.2d 626 (5th Cir. 1967); Allen v. Perini, 424 F.2d 134, 138 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970); Harris v. Tahash,......