Willeford v. Estelle

Decision Date20 September 1976
Docket NumberNo. 75-2001,75-2001
Citation538 F.2d 1194
PartiesArchie W. WILLEFORD, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Bertrand C. Moser, Houston, Tex. (Court appointed), for petitioner-appellant.

Patrick Rogers, Asst. Atty. Gen., John L. Hill, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before THORNBERRY, * SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

Archie Willeford, held in the custody of the Texas Prison System, after exhausting state post conviction remedies brought this petition in the district court below, seeking federal habeas corpus relief under Title 28, U.S.C., Section 2241 et seq. The district court denied the petition without an evidentiary hearing and without appointing counsel for Willeford. We granted appellant leave to proceed in forma pauperis and appointed appellate counsel for him.

Willeford was tried and convicted on April 16, 1969, in a Texas state court for possession of heroin in violation of the Texas Uniform Narcotic Drug Act. 1 Two prior offenses, each of them felony convictions under the Uniform Narcotic Drug Act, were alleged for enhancement purposes in the indictment on which he was tried. The court sentenced appellant to life in prison as a "habitual criminal". The Texas Court of Criminal Appeals affirmed Willeford's conviction, but found sua sponte that he had been erroneously sentenced under Article 63 of the Texas Penal Code, 2 the general "habitual offender" statute, instead of under the more specific Article 725b(23) of the Texas Penal Code. 3 Willeford v. State, Tex.Cr.App.1970, 454 S.W.2d 745. The court reformed Willeford's sentence to read "for not less than ten years nor more than life" to accord with provisions of the latter statute.

The initial issue we consider is appellant's contention that his trial in jail clothes deprived him of due process and equal protection of the law. After we heard oral argument in this case, the Supreme Court spoke to this issue in Estelle v. Williams, 1976, --- U.S. ----, 96 S.Ct 1691, 48 L.Ed.2d 126. 4 The Court held that "although the State cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." Williams, supra, --- U.S. at ----, 96 S.Ct. at 1697, 48 L.Ed.2d at 135. A major tenet of the Court's holding was that it is the responsibility of the accused and his counsel, under our system of criminal justice, to make a "vast array of trial decisions, strategic and tactical", including particularly the decisions of when and whether to impose objections at trial. Id. A close and careful reading of the record of this trial shows the defense failed to object to the petitioner's being required to undergo trial in jail garb. Consequently, we reject appellant's argument on the basis of Williams. 5

A more complex issue remains in this case with the jail clothes question settled by Williams, supra. We must consider the effect of the trial judge's mistakenly sentencing Willeford under Article 63 of the Texas Penal Code instead of under Article 725b(23). 6 Appellant argues that this mistake on the part of the trial judge deprived him of both equal protection and due process of law. He further asserts that the action of the Texas Court of Criminal Appeals in purporting to reform the sentence could not cure the initial error nor render it less constitutionally objectionable. Willeford urges that only under very narrowly defined circumstances may the Texas Court of Criminal Appeals modify a sentence, and that the appellate courts may never reassess or reduce punishment. See generally, Turner v. State, Tex.Cr.App.1972, 485 S.W.2d 282; Ocker v. State, Tex.Cr.App.1972, 477 S.W.2d 288. The reason underlying appellant's complaint in this regard is that the reformed sentence is itself a life sentence for purposes of parole eligibility, and the mandatory time for ultimate release as the maximum length of sentence governs for those purposes under Texas' indeterminate sentence law. 7 But, it is pointed out, had the trial judge understood his sentencing prerogatives he might have sentenced appellant to a set number of years more than ten but less than life, in which case a lower maximum sentence would govern his parole eligibility and ultimate release date.

The length of the sentence of a convicted criminal under state law is, without more, not a matter of federal constitutional concern and hence not a matter cognizable under federal habeas corpus. Bonner v. Henderson, 5 Cir. 1975, 517 F.2d 135. Willeford argues, however, that the arbitrary denial of a benefit conferred by state law, even though the state was under no initial obligation to provide that benefit, is a denial of constitutionally required due process, and is cognizable under federal habeas corpus. Welch v. Beto, 5 Cir. 1966, 355 F.2d 1016, cert. denied 1966,385 U.S. 839, 87 S.Ct. 88, 17 L.Ed.2d 72. He asserts, moreover, that by being sentenced under the incorrect statute, he was not only arbitrarily denied benefits under state law, but was treated differently from all other criminal defendants similarly situated, thus depriving him of equal protection of the laws. Nevertheless, in our view, each of these arguments is foreclosed provided that the action of the Texas Court of Criminal Appeals in reforming the sentence was constitutionally valid regardless of its correctness vel non under Texas law.

Our research reveals little precedent on the precise issue here. In Byers v. Crouse, 10 Cir. 1964, 339 F.2d 550, cert. denied 1965, 382 U.S. 860, 86 S.Ct. 120, 15 L.Ed.2d 98, the Tenth Circuit held that a state prisoner's complaint that he had been erroneously sentenced under the state burglary statute instead of under the state larceny statute, for which he had been convicted, was not reviewable under federal habeas corpus. The court considered the defect to be "at best a, . . . possibly trial error", and in any event not such an error as to deprive appellant of a fundamental right guaranteed by the Constitution. Byers, supra, at 552.

In Beto v. Sykes, 5 Cir. 1966, 360 F.2d 411, the petitioner, a Texas state prisoner, had been found guilty in the District Court of Gonzales County of "forgery and passing". He was sentenced at that time to five years imprisonment; the sentence was suspended, and he was placed on probation. Subsequently the petitioner pled guilty to burglary in the District Court of Bexar County, Texas, and was sentenced to a term of two to five years imprisonment. The prisoner was then brought back before the Gonzales County court. An order revoking petitioner's probation was entered, and he was sentenced to two to five years imprisonment, with the sentence to commence after petitioner had completed the sentence the district court of Bexar County had imposed on the burglary charge.

The federal district court determined that under Texas law the trial court, the District Court of Gonzales County, had the right at the time of original sentencing either to suspend imposition of sentence and place petitioner on probation, or to impose a sentence and suspend the execution of that sentence, placing the defendant on probation. The federal court determined that, in the latter circumstance, Texas case law precluded the subsequent sentencing of petitioner to the second two to five year term. The court further determined that, while the District Court of Gonzales County may have intended to suspend imposition of the sentence, the provisions of the judgment initially entered showed conclusively that the sentence was imposed with its execution suspended during petitioner's good behavior. This sentence thus began running the date the probation was revoked, and the judge was without power to order it served on completion of the first sentence imposed. The federal district court thereupon granted the writ of habeas corpus. We reversed by a short per curiam opinion, holding that the question presented was a matter of state law only, not rising to federal constitutional magnitude. Beto v. Sykes, supra.

The issues in Beto v. Sykes, supra, while arising in different factual context, do not differ essentially from those in the instant case. In each situation the state prisoner protested that he was serving a sentence which the state court imposed in violation of state law. In Beto v. Sykes the allegation was that the state trial judge imposed a sentence he had no jurisdiction to impose. In the instant case, the allegation is that the Texas Court of Criminal Appeals acted contrary to state law in purporting to correct a sentence incorrectly imposed by the trial court. In each instance, the ultimate question is the extent of the sentencing powers of the state courts. Beto v. Sykes held that federal courts lack jurisdiction to adjudicate such a question.

In Rose v. Hodges, 1975, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162, the Supreme Court considered a case presenting certain aspects of the instant case. Two Tennessee state prisoners were convicted of a rape murder, and each was sentenced to death. The Tennessee Court of Criminal Appeals affirmed the convictions, but reversed and...

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