Willeford v. Estelle, 81-2035

Citation637 F.2d 271
Decision Date29 January 1981
Docket NumberNo. 81-2035,81-2035
PartiesArchie W. WILLEFORD, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee. Summary Calendar. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Archie W. Willeford, pro se.

Mark White, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before BROWN, POLITZ and TATE, Circuit Judges.

TATE, Circuit Judge:

On remand from the Supreme Court of the United States, we reconsider our recent denial of this petitioner's application for a certificate of probable cause and for leave to appeal in forma pauperis from the third denial of his petition for federal habeas corpus relief. As directed by the order of remand, 447 U.S. 931, 100 S.Ct. 3032, 65 L.Ed.2d 1126 (1980), we reconsider our original denial in light of the recent Supreme Court decision in Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).

In response to the remand, the Attorney General of Texas has filed a brief acknowledging that, under this recent Hicks decision, the defendant is entitled to relief, in that he was denied the exercise of discretion by the sentencing authority of the trial judge. As the brief states:

In Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227 (65 L.Ed.2d 175) (1980), the Supreme Court of the United States held that it violates due process of law for a convicted state prisoner to be sentenced under a mandatory punishment statute where, under state law, he is entitled to the benefit of a discretionary state sentencing statute. Under state law, as held by the Texas Court of Criminal Appeals, Willeford should have been entitled to an exercise of discretion by the trial judge. He should have been sentenced to life or any term of years not less than ten that the judge felt appropriate. Instead, the trial judge erroneously believed that he was bound to impose a sentence of life imprisonment. The reformatory actions of the Texas Court of Criminal Appeals on direct appeal did nothing to cure the defect. Accordingly, Willeford's life sentence is illegal.

(I)n the instant case Willeford was denied the exercise of discretion in sentencing by his punishing authority, the trial judge. The trial judge should have considered all the facts of Willeford's case that are normally involved in deciding upon the proper punishment in a criminal case, including Willeford's prior criminal...

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12 cases
  • King v. Lynaugh
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 27, 1988
    ...Cir.1988); Anderson v. Jones, 743 F.2d 306, 308 (5th Cir.1984); Williams v. Maggio, 730 F.2d 1048 (5th Cir.1984); Willeford v. Estelle, 637 F.2d 271 (5th Cir. Unit A 1981).5 Anderson, 743 F.2d at 308; Hickerson v. Maggio, 691 F.2d 792, 794-95 (5th Cir.1982).6 Pope v. State, 256 Ga. 195, 345......
  • Terrebonne v. Blackburn
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 1, 1981
    ...369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).2 See Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980); Willeford v. Estelle, 637 F.2d 271 (5th Cir. 1981); State v. Foret, 380 So.2d 62 (La.1980).3 We note that Terrebonne might be able to attack his sentence under Louisiana's n......
  • Dupuy v. Butler
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 17, 1988
    ...v. Maggio, 730 F.2d 1048, 1049 (5th Cir.1984); Hickerson, 691 F.2d at 795 & n. 2; Prater, 686 F.2d at 350; Willeford v. Estelle, 637 F.2d 271, 272 (5th Cir. Unit A 1981).20 Mabry, 448 U.S. at 446, 100 S.Ct. at 2757 ("The Court of Appeals acknowledged that the omission of discretionary resen......
  • State v. Ira
    • United States
    • Court of Appeals of New Mexico
    • January 24, 2002
    ...statute where, under state law, he was entitled to the benefit of a discretionary state sentencing statute); Willeford v. Estelle, 637 F.2d 271, 272 (5th Cir.1981) (remanding for post-conviction relief where defendant, under state law, should have been entitled to an exercise of discretion ......
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