Williams v. Estelle, Civ. A. No. CA 4-76-174.

• Decision Date: 09 July 1976
• Docket Number: Civ. A. No. CA 4-76-174.
• Citation: 416 F. Supp. 1073
• Parties: Mark Ira WILLIAMS v. W. J. ESTELLE, Director, Texas Department of Corrections and Lon Evans, Sheriff Tarrant County.
• Court: U.S. District Court — Northern District of Texas

416 F. Supp. 1073

Mark Ira WILLIAMS v. W. J. ESTELLE, Director, Texas Department of Corrections and Lon Evans, Sheriff Tarrant County.

Civ. A. No. CA 4-76-174.

United States District Court, N. D. Texas, Fort Worth Division.

July 9, 1976.

Frank D. McCown, Fort Worth, Tex., for plaintiff.

Tim C. Curry, Criminal Dist. Atty., Marvin Collins, Asst. Dist. Atty., Fort Worth, Tex., for Lon Evans.

MEMORANDUM AND ORDER OF DISMISSAL

MAHON, District Judge.

This is an action on a Petition for Writ of Habeas Corpus, For a Stay of Sentence, and For Bail, filed by Petitioner on 17 June 1976. Respondent Lon Evans has moved to dismiss.¹ Respondent's motion came on for oral argument before the Court on 25 June 1976. After careful consideration, the Court is of the opinion that Respondent's motion should be granted.

I.

On a motion to dismiss, the Court accepts Petitioner's factual allegations as if they had been proven true. Petitioner alleges the following factual background to his arrest and plea of guilty:

On Saturday, September 7, 1974, Petitioner left Dulles airport in Washington, bound for Tucson. He checked a suitcase through to Tucson. In the suitcase were a pistol, $5,000.00 in currency, and about one pound of marijuana. En route, for his 21st birthday celebration, Petitioner drank some drinks served by the airline, and smoked a part of one marijuana cigarette. As a result of the combination of drinks, marijuana, and altitude of the plane, Petitioner became very disoriented. He left the plane at Dallas/Fort Worth airport attempting to make the connecting flight to Tucson. He was arrested in the jet-way between the plane and the airport by officers of the Department of Public Safety of D/FW airport. He was not in possession of the suitcase at the time of his arrest. After a preliminary search, he was taken to an office of the DPS about 6 p. m. on Saturday, September 7, 1974, and booked.

Some $23,000 was found on his person as was a false identification and a baggage claim check. He was then questioned off and on for several hours while he was still disoriented.

The baggage claim check for the suitcase was taken from Petitioner's wallet by an officer. The method in which the bag was obtained from the airline and whether it was sent to Tucson by the airline and retrieved by the officers or was taken by them at the D/FW airport before the plane left for Tucson is unknown to Petitioner. The bag, in any event, was not in Petitioner's possession but the airline's. Petitioner had never intended to see the bag in Texas and had no way of guaranteeing that the bag would be on the same airplane as he. The bag was brought back to the office and Petitioner was asked repeatedly to open it and sign a consent form. He refused. He asked for counsel, but was allowed no phone calls. At noon on the following day, Sunday, some 18 hours after his arrest, Petitioner was allowed to call an attorney. This attorney came and talked with the officers and Petitioner. The officers were still asking for consent to search Petitioner's suitcase. Petitioner had told the attorney that he had a pistol, $5,000 in cash, and about one pound of marijuana in the suitcase. Under the existing Texas law at the time, possession of the two marijuana cigarettes was a Class B misdemeanor and a fine and six months in jail was the maximum punishment. Possession of more than 4 ounces of marijuana was a felony punishable by not less than two nor more than ten years in the penitentiary and a fine of $5,000.00. The attorney told Petitioner that unless he consented to the search and allowed the officers to search his bag, they would keep his money and give it to the IRS where it would be tied up for a long time and he might loose all or a part of it. He also told Petitioner that the officers could and would get a search warrant and search the bag anyway. He said that there was no way that the officers would not get a search warrant and that the Petitioner might as well cooperate with the authorities as they had him cold. The attorney also told him that he would be charged with a felony and that the attorney thought he would get a probated sentence. Petitioner, acting on the advice of the attorney, consented to the search. The bag was searched and the marijuana was found. The attorney left, went to Dallas, and obtained a writ of habeas corpus. Petitioner was released and given the gun and all his money, from which he paid the attorney $4,000.00 as a retainer and $500 for a writ bond fee. The money was paid that Sunday.

Petitioner subsequently plead guilty, before a jury in Criminal District Court No. 3, Tarrant County, Texas, to possession of more than four ounces of marijuana. Petitioner was sentenced to two years in the penitentiary and $5,000.00 fine. The case was appealed and affirmed, and mandate has issued. Petitioner is presently in the Tarrant County Jail awaiting transfer to the state penitentiary.

II.

The basic issues in Petitioner's suit are whether his representation by personally retained counsel was adequate or whether he had effective advice of his counsel at trial and at the time he consented to the search of his suitcase. Petitioner claims that his attorney was ineffective and that this rendered his trial fundamentally unfair. Respondent's Motion to Dismiss primarily asserts that Petitioner has failed to exhaust state remedies. It is on this ground that the Court dismisses this action.

In United States ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976) hereinafter "Reis", the Fifth Circuit held that a Florida petitioner in habeas corpus who complained of lack of effective retained counsel need not have exhausted state remedies prior to petitioning for relief in federal district court. In that case, the petitioner had applied to state district court for a writ of habeas corpus, but had failed to appeal the district court's summary denial of relief. Pointing out that the doctrine of exhaustion of remedies is a matter of comity, not jurisdiction, and that state remedies need not be exhausted where it is plain that resort to the state courts would be futile, the Reis Court stated:

In an uninterrupted line of cases Florida has steadfastly refused to recognize incompetence of privately retained counsel as a valid basis for post-conviction relief. The rule appears firmly entrenched in Florida's jurisprudence, and we see no indication that a Florida appellate court would be inclined to deviate from this well worn path.

. . . The rule has been maintained in Florida, even in the face of holdings of this circuit that a defendant who is denied due process because of the incompetency of privately retained counsel is as deserving of post-conviction relief as a defendant who has had court-appointed counsel, e. g., Bell v. State of Alabama, 367 F.2d 243 (5th Cir. 1966).

Even the state, in opposition to the appellant's motion for an evidentiary hearing on the issue of incompetent counsel under Fla.R.Crim.P. 3.850, argued that an evidentiary hearing was unnecessary because "Florida cases are legion in holding that in post-conviction relief cases one may not contest the competency of privately retained counsel." The state is unable to cite a single Florida case evidencing even the slightest penchant to abandon its precedent. In these circumstances, dismissal for want of exhaustion of state remedies is not justified. "Neither the statute nor the spirit of needed comity behind it require such a formalistic waste of precious judicial energy, state or federal." Reed v. Beto, supra 5 Cir., 343 F.2d 723, at 725.

525 F.2d at 1272-1273 (footnotes omitted).

Petitioner urges that the present case is controlled by Reis and that this federal Court should therefore hear the merits of his claim without requiring him to exhaust state remedies. His argument is basically that the Texas Court of Criminal Appeals and the Fifth Circuit Court of Appeals have evolved different standards for determining the ineffectiveness of privately retained counsel. He contends that the facts as plead constitute a maintainable habeas corpus action under the Fifth Circuit standard, but that under the Texas standard, he would be foreclosed as a matter of law from seeking such relief.

III.

The standard for ineffective assistance of privately retained counsel in the Fifth Circuit is clearly set forth in Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975) hereinafter "Fitzgerald", and Reis, 525 F.2d 1269. The Fifth Circuit has reasoned that the two constitutional bases for attacking the effectiveness of counsel, the Fourteenth Amendment right to due process of law and the Sixth Amendment² right to assistance of counsel, require different standards of effectiveness. Thus, the federal courts in the Fifth Circuit apply a two-pronged test of effectiveness.

(1) The Fourteenth Amendment's guarantees of due process of law are violated when defense counsel's representation is so blatantly incompetent as to render the whole proceeding fundamentally unfair. Reis, 525 F.2d at 1273. The "fundamentally unfair" standard is applicable only where there has been such a gross malfunction in the judicial proceedings that the state's criminal justice system has operated to deny petitioner his Fourteenth Amendment right to due process. Fitzgerald, 505 F.2d at 1336. In such a situation, where the judicial system itself has operated to deny the defendant due process of law, it does not matter whether counsel was court-appointed or privately retained. "The conviction of a defendant after a trial that is fundamentally unfair, whatever the cause of such unfairness, violates Fourteenth Amendment due process." Fitzgerald, 505 F.2d at 1336.

(2) The Sixth Amendment's guarantee of reasonably effective assistance of counsel covers a broader range of counsel errors than does the Fourteenth Amendment's guarantees of due process. See Herring v. Estelle, 491...