Petition — Vickery v. Estelle

© Court, u. &

FELE D

FEB i? 976

MICHAEL RODAK, JR. CLERK

no... €57 1164

In the

Supreme Court of the United States

OCTOBER TERM, 1976

Mary FRANCES VICKERY,

Petitioner,

Vv.

W. J. Estee, Director,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN F. JORDAN

2818 Maple Avenue - #103

Dallas, Texas 75201

(214) 744-3621

CHARLES E, Tosin

CuHares E. Tosin, Inc.

2508 Cedar Springs

Dallas, Texas 75201

(214) 748-6141

WILLIAM E. NoRMAN

2508 Cedar Springs

Dallas, Texas 75201

(214) 748-6141

TABLE OF CONTENTS

Page

OPINIONS BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS

STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION 14

APPENDIX A— ORDER OF DISMISSAL OF

THE DISTRICT COURT A-l

APPENDIX B— ORDER OF THE COURT

OF APPEALS A-3

APPENDIX C — ORDER OF THE COURT OF

APPEALS ON PETITION FOR REHEARING A-4

APPENDIX D— EX PARTE FRANCIS 510 S.W.

Qo on wo NY NY &

2d 345 (Tex. Ct. Crim. App. 1974) A-5

APPENDIX E—EX PARTE ESQUIVEL,

No. 51047 S.W. 2d (Tex. Ct.

Crim. App. 1976) A-10

List of Authorities

Page

Cases

Allen v. Perini, 424 F. 2d 134 (6th Cir. 1970) 7

Ex Parte Esquivel, No. 51047, S.W. 2d (Tex.

Ct. Crim. App., 1976) 13, 14

Ex Parte Francis, 510 S.W. 2d 345 (Tex. Ct.

Crim. App., 1974) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14

Evans v. Cunningham, 335 F. 2d 491 (4th Cir. 1964) 7

Layton v. Carson, 479 F. 2d 1275 (5th Cir. 1973) 8

Lucas v. People of State of Michigan, 420 F. 2d

259 (6th Cir. 1970) 7

Picard v. Conner, 404 U.S. 270, 92 S. Ct. 509,

30 L. Ed. 438 (1972) 8, 14

State ex rel Shotkin v. Buchanan, 149 So. 2d 574,

(Fla. App. 1963) ony.

Woodall v. Pettibone, 465 F. 2d 49 (4th Cir. 1972) 7

Statutes

28 U.S.C. § 1254(1) 2

28 U.S.C. § 2241 2

28 U.S.C. § 2254 5

28 U.S.C. § 2254 (b) (c) 6

TEX. CODE CRIM. PROC, ANN.,

Art. 11.01 et seq 2, 3, §

TEX. CODE CRIM. PROC, ANN., Art. 44.05 i)

Constitutional Authority

U. S. Constitution, 14th Amendement S & Yo 8

U. S. Constitution, 14th Amendment, Sec. 1. 5

Miscellaneous Authorities

98 A.L.R. 2d 683, “Effect of Delay in Taking

Defendant into Custody after Conviction

and Sentence” 9

No.

In the

Supreme Court of the United States

OCTOBER TERM, 1976

Mary FRANCES VICKERY,

Petitioner,

v.

W. J. Estee, Director,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Your Petitioner, Mary Frances Vickery, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit entered

in this proceeding on November 21, 1975, and on petition

for rehearing on January 7, 1976.

OPINIONS BELOW

The per curiam order of the Court of Appeals, not officially

reported, affirming the district court appears in Appendix A.

at A-3. The per curiam order of the Court of Appeals

denying the petition for rehearing, not officially reported,

appears in Appendix A. at A-4. The order of the United

States District Court for tne Northern District of Texas,

Dallas Division, appears in Appendix A. at A-1 and A-2.

2

JURISDICTION

The judgment of the Court of Appeals was entered on

November 21, 1975. Petition for rehearing was filed Decem-

ber 22, 1975, and the order denying the petition for rehear-

ing was entered on January 7, 1976. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether a person in custody pursuant to a judgment

of a state court who has petitioned the state court for relief

from such judgment and such relief has been denied should

be required to petition the state court once again on the

same factual situation as raised in her first petition, but on

different constitutional grounds, where the state court has

recently decided a case on the same constitutional grounds

raised in Petitioner’s request for federal relief merely be-

cause there exists one minor point of factual dissimilarity

in Petitioner’s case and the recently decided case.

CONSTITUTIONAL PROVISIONS

The Fourteenth Amendment in pertinent part provides:

“* * * no State shall make or enforce any law which shall

abridge the privilege or immunities of citizens of the United

States; or shall any State deprive any person of life, liberty,

or property without due process of law; nor deny to any

person within its juri-liction equal protection of the law.”

STATUTORY PROVISIONS

28 U.S.C. § 2241(c) provides in pertinent part:

“The writ of habeas corpus shall not extend to a person

unless —

“(3) He is in custody in violation of the Constitution

or law or treaties of the United States; * * *”

Texas Code of Crminal Procedure Article 11.01 et seq

provides in pertinent part:

“The writ of habeas corpus is the remedy to be used

when any person is restrained of his liberty.”

3

STATEMENT OF THE CASE

This case involves important procedural questions concern-

ing the rights of persons in custody pursuant to a judgment

of a state court to a speedy and efficient adjudication of the

lawfulness of such custody under the Constitution of The

United States. Because Petitioner’s claims have not been

adjudicated on the merits by the Court of Appeals, a brief

sketch of her substantive claims will suffice for purposes of

this petition.

On January 6, 1967, Petitioner entered a plea of guilty to

the offense of burglary in the Criminal District Court Num-

ber Four, in Dallas County, Texas, for which she was sen-

tenced to three years confinement in the Texas Department

of Corrections.

The case was appealed to the Texas Court of Criminal

Appeals in Austin, Texas, and Petitioner posted an appeal

bond in the amount of $3,000 secured by a home owned by

Petitioner’s mother and father. The appeal was timely

prosecuted.

On December 13, 1967, the Texas Court of Criminal Ap-

peals affirmed the case and the mandate was issued on

December 29, 1967. The time at which the clerk of Criminal

District Court Number Four received the mandate is uncer-

tain, but the mandate was received and negligently filed

among the court papers concerning unrelated matters by the

clerk of the court, now deceased.

The mandate was inadvertently discovered on February 20,

1974, at which time the present clerk issued a capias for

Petitioner’s arrest on the basis of the 1967 conviction.

On September 5, 1974, Petitioner was stopped by a Dallas

Police Officer for operating a vehicle with an expired safety

inspection sticker and upon a routine check of outstanding

warrants was arrested pursuant to the above-mentioned

capias.

On September 19, 1974, Petitioner filed a writ of habeas

corpus pursuant to Art. 11.01 et seq Texas Code of Criminal

Procedure.

4

The grounds for issuance of the writ of habeas corpus were,

(1) that there was no evidence to support the plea of guilty

as there were no written stipulations of evidence, as required

by statute, (2) that the oral stipulations dictated into evi-

dence were not authorized under the statute, (3) that

through accident, omission or negligence of law enforcement

or court officers, Petitioner was denied the right to prosecute

an effective appeal because had she been aware of the

affirmance of her appeal she might have petitioned the

appeals court for hearing on points of no evidence, and

(4) that the seven year delay in the enforcement of the

mandate of the appeals court constituted cruel and unusual

punishment.

The hearing on the writ of habeas corpus revealed that:

(1) Petitioner’s parents had pledged a house to

secure Petitioner’s appeal bond.

(2) That the house was sold in 1970, but prior to

sale, Petitioner’s parents inquired concerning the pro-

priety of the sale but no information concerning the

bond or their daughter’s case could be located and the

house was sold.

(3) The above-mentioned appeal bond was never

forfeited.

(4) During the seven year period, Petitioner main-

tained a permanent mailing address at her parents’

home and checked her mail at least once each week.

(5) In 1969, Petitioner was charged with possession

of marijuana and prior to trial, which resulted in a

hung jury and was subsequently dismissed, made eight

to twelve appearances in court and was never informed

of the affirmance of her 1967 conviction.

(6) Except for the marijuana arrest, Petitioner was

never again handled for a criminal violation.

On October 17, 1974, the Judge of Criminal District Court

Four found in favor of Petitioner regarding her contention

that the oral stipulations were invalid and recommended that

5

the Texas Court of Criminal Appeals grant Petitioner’s writ

of habeas corpus and release her from confinement.

The statement of facts from the hearing and findings, con-

clusions, and recommendation of the Judge were transmitted

to the Texas Court of Criminal Appeals pursuant to

Article 11.01 et seq.

Despite the recommendation, the Court of Criminal Ap-

peals denied Petitioner’s writ of habeas corpus without writ-

ten opinion.

On December 16, 1974, Petitioner filed for habeas corpus

relief in the United States District Court, Northern District

of Texas, Dallas Division pursuant to 28 U.S.C. § 2254. Peti-

tioner requested relief on the same factual basis relied on in

the state court but instead of raising the issue of no evidence

or other issues raised in the state court she contended that

the seven year delay in enforcement of her sentence consti-

tuted a denial of the due process guaranteed her by the

14th Amendment and fundamental justice concepts there-

under and requested that the court, pursuant to 28 U.S.C.

§ 2254, excuse further requirements to exhaust state remedies

because there was an existence of circumstances rendering

such process ineffective to protect the rights of Petitioner

in that the Court of Criminal Appeals had recently decided

an identical case in which relief was denied.

Petitioner referred to the case of Ex Parte Francis, 510

S.W. 2d 345, appearing at pages A-5 through A-9 in the

Appendix decided by the Texas Court of Criminal Appeals

on June 12, 1974. The Texas Court of Criminal Appeals in

Ex Parte Francis dealt with the same factual issues involving

a delay of eight years. In Ex Parte Francis, the petitioner

alleged that his rights under Section 1 of the 14th Amend-

ment had been violated, which was the same constitutional

issue relied on by Petitioner in this cause in the Federal

forum.

On February 28, 1975, the district court entered an order

releasing Petitioner from the custody of the Sheriff of Dallas

County, Texas upon the posting of a $3,000 cash bond pend-

ing determination and hearing of Applicant’s Writ of Habeas

Corpus presently before the Court.

6

On April 2, 1975, an order of dismissal was entered in the

United States District Court holding that Petitioner had

failed to exhaust remedies because the case of Ex Parte

Francis was sufficiently distinguishable from the case at bar

in that the petitioner in that case had knowledge of the

affirmance of his case, whereas the record in the case at bar

reflected that Petitioner had no such knowledge.

Petitioner noted her appeal from this decision and a certifi-

cate of probable cause was granted by the district court.

The Court of Appeals for the Fifth Circuit considered the

case on the briefs submitted by Petitioner and Respondent

without oral argument. On November 21, 1975, it rendered

its decision affirming the district court’s dismissal. On

January 7, 1976, the petition for rehearing was denied.

REASONS FOR GRANTING THE WRIT

By requiring a petitioner in custody under a state court

conviction to file successive habeas corpus petitions merely

because a slight factual dissimilarity exists in Petitioner’s

case and a case recently decided adversely to Petitioner’s

position, the Court of Appeals has decided an important

question of federal law either contrary to the applicable

decisions of this Court or has decided a question which

heretofore has not, but should be decided by this Court.

Under 28 U.S.C. § 2254(b) (c), it is axiomatic that a

petition for habeas corpus by a person in state custody will

not be granted unless state court remedies have been ex-

hausted. Although mere anticipation of an adverse decision

will not excuse a failure to exhaust, nor will the lack of

probability of success, the exhaustion remedy is not absolute.

Where there are circumstances rendering the state correc-

tive process ineffective to protect a prisoner’s rights, habeas

corpus relief may be granted without requiring a futile ex-

haustion of remedies. Such circumstances were found to

exist where state court has ruled contrary to petitioner’s

contentions when there was no indication that the court was

prepared to depart from its former course of decisions.

7

Lucas v. People of State of Michigan, 420 F. 2d 259 (6th

Cir., 1970), Allen v. Perini, 424 F. 2d 134 (6th Cir., 1970).

An almost identical fact situation existed in Ex Parte

Francis, 510 S.W. 2d 345 (Tex. Crim. App., 1974). In that

case relief was sought on several grounds, one of which was

denial of due process under the 14th Amendment. The court

denied relief sought without addressing petitioner’s point

on denial of due process. It is evident that if Petitioner in this

cause were again to petition the Court of Criminal Appeals

for relief from her conviction on grounds of denial of due

process, such application would amount to no more than a

petition to the Court of Criminal Appeals to rehear Ex Parte

Francis, and since nothing new would be presented by Peti-

tioner Vickery there would be no reason to suppose that the

court would be disposed to reconsider its very recent deci-

sion. Exhaustion of state remedies does not require an

exercise in futility. Evans v. Cunningham, 335 F. 2d 491

(4th Cir., 1964); Woodall v. Pettibone, 465 F. 2d 49 (4th

Cir., 1972).

Petitioner Vickery has once petitioned the Court of Crim-

inal Appeals for relief from the same facts but on grounds of

no evidence and relief was denied. In light of Ex Parte

Francis, to require her to file another writ in state court

based upon due process grounds would amount to nothing

more than to require her to invoke an ineffective process and

result in further delay.

More than nine years have elapsed since Petitioner entered

her plea. State remedies have been exhausted to the extent

that any further requirement to exhaust state remedies will

serve only to cause Petitioner to invoke an ineffective process

resulting from the filing of successive applications in the

state court, all of which is contrary to the spirit and letter

of the statutes which guarantee the availability of the “Great

Writ” to those persons illegally restrained of their liberty.

The precise constitutional issue upon which Petitioner would

rely has been presented to the Texas Court of Criminal Ap-

peals in Ex Parte Francis and that Honorable Court has

been given an opportunity to decide the constitutional issue

prior to submitting the same to the federal court, thus satis-

8

fying the requirements of Picard v. Conner, 404 U.S. 270,

92 S. Ct. 509, 30 L. Ed. 438 (1972).

The order of dismissal entered in the United States Dis-

trict Court does not seem to dispute the argument presented,

at least to the extent that it is summarized above. However,

the reasoning of the order of dismissal is found in the

following:

“If in an identical case, the state’s highest court has

recently rendered a decision adverse to a federal habeas

corpus petitioner, and there is no reason to believe that

the state court will change its position, a federal court

should not dismiss a petition for habeas corpus for

failure to exhaust state remedies. Layton v. Carson, 479

F, 2d 1275, 1276 (5th Cir., 1973). However, the case sub

judice is sufficiently distinguishable from the Texas case

of Ex parte Francis, 510 S.W. 2d 345, (Tex. Crim. App.

1974) that exhaustion is not excused. In Francis the

Texas Court of Criminal Appeals attached significance

to the fact that petitioner knew that a mandate had

issued. In this case, however, the record reflects that

applicant had no such knowledge.”

The petition was then ordered dismissed for failure to ex-

haust state remedies.

Petitioner’s petition for habeas corpus was dismissed be-

cause of the aforementioned distinction discerned by the

Judge of the United States District Court below. Although

the distinction does apparently exist, Petitioner would

emphatically disagree with the materiality of the distinction

and the weight accorded this distinction in the district court

below. It is respectfully submitted that the cases involving

identical points of law are few and far between, which cannot

be factually distinguished in some respect however minor or

insignificant the distinction might be. The distinction de-

termined to exist in the court below would be of no import-

ance to the Texas Court of Criminal Appeals in deciding

Petitioner’s case were it again to be submitted on grounds

of unreasonable delay in the enforcement of the sentence.

9

There can be absolutely no doubt that the decision would be

adverse to Petitioner.

Petitioner has found only four cases in Texas law which

deal with the issue involved herein. Three of these cases are

cited in Ex Parte Francis. The law in Texas is clear and

cannot be disputed. Delay for any reason will not override

the public interest derived from the punishment of those

persons convicted of crimes. More specifically, the public

interest is paramount even where delay has been oc-

casioned by either the illegal act or the negligence of officials.

To protect the public interest, the decisions of the Texas

cases involving delay are based upon the conditions of the

bail bonds posted to secure the freedom of the appellant

during the pendency of the appeal. It has been consistently

reasoned in the Texas cases that the defendant in such fact

situations was under a duty to surrender himself to the

sheriff whenever his case was affirmed.

Aside from the conditions of the bail bond, an examina-

tion of Texas Code of Criminal Procedure § 44.05 reveals

that the duty of the clerk and the sheriff are absolute,

that is that upon receipt of the mandate the capias shall

issue and the sheriff shall forthwith execute the capias. (Em-

phasis added) It is impossible for Petitioner to conceive that,

in view of the mandatory language contained in § 44.05,

knowledge or lack of knowledge of the affirmative could

affect these absolute duties and inevitabilities of arrest and

confinement under Texas law. The courts in Texas have

adopted and adhered to the position that a defendant must

suffer the sentence irrespective of any delay in the imposi-

tion of the sentence.

Other jurisdictions have adopted the rule that under the

particular facts presented, delay will relieve the defendant of

the burden to suffer the penalty. The divergence in this area

of the law is illustrated well in the case of State ex rel Shot-

kin v. Buchanan, 149 So. 2d 574 (Fla. App., 1973) which

apears in 98 A.L.R. 2d 683 followed by an annotation the

subject of which is “Effect of Delay in Taking Defendant

into Custody After Convicticn and Sentence.” This annota-

tion clearly shows that Texas is a jurisdiction in which the

10

sentence is enforced notwithstanding the delay. The fact of

knowledge or lack of knowledge is not of sufficient import

to cause the Texas Court of Criminal Appeals to depart

from its holdings in prior cases. Quite obviously, if given the

opportunity to argue the merits of her case, Petitioner would

wholeheartedly disagree with the absolute position taken by

the Texas Court of Criminal Appeals in cases of this nature

— out the harsh and inequitable results obtained under

exas law.

In this case, of course, we are not concerned with affirma-

tive action involving unauthorized release or excuse from

service of sentence by officials, but even if we were dealing

with a case involving delay of enforcement occasioned by

illegal action of an official, the contention cannot be advanced

under the reasoning in the Texas cases that knowledge or

lack of knowledge by the Appellant of such illegal action

could in any way estop the State of Texas from enforcing

the sentence. By the same token, where the delay has been

occasioned by the negligence of law enforcement or court

officers, knowledge or lack of knowledge could not affect the

outcome of a case decided under existing Texas law.

In the case at bar, Petitioner was allowed to remain at

large during the appeal by posting bond. The appeal bond

posted by Petitioner appears to be substantially similar to

the bond posted in Ex Parte Francis, a portion of which was

excerpted and is found in footnote number 1. at 510 S.W.

2d 347, wherein the material condition of the bond is stated

as follows:

i. “Shall appear before this Court from day to day

and from term to term of the same and not depart

without leave of the Court in order to abide the

judgment of the Court of Criminal Appeals of the

State of Texas.”

Texas decisions impose an absolute duty on the appellant

to appear under the conditions of the bond. Petitioner can

find nothing in the wording of the bond that states the

appellant must be notified by the court to appear, but rather,

continued freedom was conditioned on the fact that she must

11

appear at any time or place as required by the Code of

Criminal Procedure or the courts having jurisdiction of the

case. Although petitioner in Ex Parte Francis knew of the

affirmance and the court, in essence, found that he had

caused his own hardship by failure to appear upon affirmance

of the case, Petitioner would submit that because of the

Texas Court of Criminal Appeal’s strict adherence and

emphasis on the duty of the appellant to comply with the

conditions of the bail bond that even if Petitioner Francis

had not known of the issuance of the mandate, that the

outcome of the case would have been the same. In support

hereof, Petitioner would respectfully direct the Court’s at-

tention to Ex Parte Francis at p. 346 wherein the court cites

language from previous cases as follows:

“The appeal bond which the appellant executed required

that he appear before the court in which the judgment

was rendered and abide by the judgment of the Court

of Criminal Appeals in this case. It was by reason of

this bond that he was allowed to remain at large pend-

ing his appeal, and if he had obeyed his terms, doubtless

the sheriff would have put him in jail, but having failed

to do so, we find no warrant in the law for the conclusion

that he has satisfied the judgment against him. * * * ”

“A duty likewise rested upon the appellant and the

sureties on his recognizance. He might have paid the

fine or surrendered himself; so might the sureties. None

of the officers of the state had the right to affirmatively

release the appellant or waive the state’s right to the

satisfaction of the judgment of the court. They having

no right to do so by affirmative action, it is our opinion

that their negligence in performing the duties which the

law imposed upon them would not operate to dis-

charge the appellant from the necessity of suffering

the penalty imposed upon him by the judgment of

conviction. * * *”

“In all of these cases the courts have denied the peti-

tioner’s application for release on habeas corpus, and

have required the prisoner to serve his term notwith-

standing the delay. * * *”

12

“Any other holding under the facts in the case at bar

would permit ministerial officers to thwart and nullify

the judgment of courts. * * *”

“The people of a state are interested in punishment of

those convicted of crimes and public interest should not

be subservient to illegal acts and default of officers who

had charge of prisoners, * * *”

The decision in Ex Parte Francis rests upon these statements

of law. The statements do not contain any wording to sup-

port the contention that had Petitioner Francis not known

of the affirmance the decision would have been different.

Nor can any inference be drawn to such effect.

It is conceded that the case at bar and Ex Parte Francis

may be distinguished in respect to this point involving

knowledge or lack of knowledge. Petitioner would further

submit that had Petitioner been allowed to argue in the

United States District Court the merits of her petition for

writ of habeas corpus the issue of her lack of knowledge

would have been of paramount importance and the thrust

of her argument would lie in the fact that, aside from the

conditions of her bond upon which Petitioner would attach

little significance, the delay was not caused by fault attribu-

table to her but rather by the negligence of the clerk and

the unreasonable delay caused thereby. Petitioner would

have further argued that the imposition of the prison sen-

tence after the unreasonable delay of seven years, which

was occasioned by the negligence of court personnel with-

out fault attributable to Petitioner constitutes a violation

of the Due Process clause of the 14th Amendment of the

United States Constitution and the concepts of fundamental

justice thereunder. However, Petitioner in this brief is not

concerned with arguing the merits of her cause but rather

she is concerned with convincing this Honorable Court that

for her to present these same facts to the Texas Court of

Criminal Appeals would amount to an exercise in futility.

That her knowledge or lack of knowledge of the affirmance

could have no effect on the outcome of her case submitted

to the Texas Court of Criminal Appeals under Texas law.

13

The Texas Court of Criminal Appeals has very recently

decided a case which illustrates well the futility of requiring

Petitioner to go back through the state courts. Ex Parte

Esquivel, No. 51047, S.W. 2d ,” ap-

pearing at pages A-10 through A-14 in the Appendix, was

decided on January 7, 1976.” The case involved basically the

same factual circumstances with which Petitioner is faced ex-

cept that Esquivel received two convictions and two concur-

rent sentences. In 1960, Esquival went to the penitentiary on

the five year sentence and appealed the conviction imposing

the life sentence. The appeal was affirmed and the mandate

issued, however, the clerk failed to file the mandate. The

clerk’s error was not discovered until 1973. Esquivel dis-

charged the five year sentence in 1963, and subsequently

went to the penitentiary three more times. The State of

Texas sought to impose the 1960 life sentence on Esquivel

and he petitioned for a writ of habeas corpus under the

state statute to vacate and set aside the life sentence.

It was stipulated that Petitioner did not have knowledge

of the affirmance of his 1960 case. The Texas Court of

Criminal Appeals refused to vacate and set aside the life

sentence but did, however, order the Texas Department of

Corrections to give Esquivel “flat time” and “good time”

sentence credit from the date of sentencing since May 3,

1960. In footnote five of Ex Parte Esquivel, the Texas Court

of Criminal Appeals distinguished its holding from that of

Ex Parte Francis in that Petitioner Francis was never re-

quired to serve any of his sentence until after the appellate

process.

Petitioner Esquive) had no knowledge of the affirmance

of his conviction just as Petitioner Vickery had no knowl-

edge of the affirmance of her conviction. Petitioner in Ex

Parte Francis did have knowledge of the affirmance of his

conviction. The Texas Court of Criminal Appeals refused to

vacate or set aside any of the sentences irrespective of any

of the petitioners’ knowledge or lack of knowledge, however,

Petitioner Esquivel did receive certain sentence credits be-

cause he had been to the penitentiary between the time of

14

his sentencing and discovery of the clerical error which

resulted in the 13 year delay.

The issue of denial of due process under the 14th Amend-

ment was raised in Ex Parte Francis and presented to the

Texas Court of Criminal Appeals, which declined to even

address the point in its written opinion. Denial of due

process was also raised in Ex Parte Esquivel. Once the fed-

eral claim has been fairly presented to the state courts, the

requirement that state remedies be exhausted is satisfied.

Picard v. Conner (infra) The Texas Court of Criminal Ap-

peals has been afforded the opportunity to resolve the con-

stitutional issues. All that is required to be done is to give

the state court an opportunity to pass on the issue. There

is no reason to believe that if Petitioner were again required

to seek relief in the state court that her petition would not

receive the same summary treatment as before.

CONCLUSION

For the reason set forth above, the petition for writ of

certiorari should be granted.

Respectfully submitted,

(214) 744-3621

CHaRLes E. Tosin

CHARLES E, Tostn, INc.

2508 Cedar Springs

Dallas, Texas 75201

(214) 748-6141

WILLIAM E, NoRMAN

2508 Cedar Springs

Dallas, Texas 75201

(214) 748-6141

15

PROOF OF SERVICE

THE STATE OF TEXAS

CouNTY OF DALLAS

Berore Me, the undersigned Notary Public in and for

Dallas County, Texas on this day personally appeared

JOHN F. JoRDAN, who being by me duly sworn, upon oath

stated: I, JoHN F. JorDAN, am a member of the Bar of the

Supreme Court of the United States and am one of the

attorneys of record for Petitioner herein.

I further state upon oath that upon the “*% day of

February, 1976, I served copies of the foregoing Petition for

Writ of Certiorari on the Respondent W. J. EsrTe.ze, Jr.,

by depositing the same in the United States Mail, with

first class postage prepaid, addressed to the following counsel]

of record in the courts below, at the address indicated,

to-wit:

Mr. Herman Little, Jr.

Assistant Attorney General

Post Office Box 12548, Capitol Station

Austin, Texas 78711

SUBSCRIBED AND Sworn to before me by the said JOHN F.

Jorpan, this /4™ day of February, 1976.

Notary Public in and for

Dallas County, Texas

A-1

U. S. DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

a7

APR. 2, 1975

JOSEPH McELROY, JR., CLERK

BY JANE STUART,

DEPUTY

IN THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Mary FRANCES VICKERY

v.

W. J. EsTe.e, Jr., Director

Texas Department of Corrections

CIVIL ACTION NO. CA-3-74-1234 D

ORDER OF DISMISSAL

After making an independent review of the entire file in

the above styled case, and after consideration of the findings

and recommendation of the United States Magistrate the

court is of the opinion that the applicant’s petition for a

writ of habeas corpus should be dismissed without prejudice.

Though the facts of this case were presented to the state

courts, applicant’s constitutional claim asserted herein was

not brought to their attention. The applicant applied for a

writ of habeas corpus in Criminal District Court No. 4 of

Dallas County, Texas in October 1974. That district court

on October 17, 1974 entered its findings of fact and con-

clusions of law, recommending that the Court of Criminal

A-2

Appeals grant the writ because of a procedural error. The

Court of Criminal Appeals however, without opinion denied

the writ.

Applicant did not contend in the state court that the

delay in incarceration denied her due process of law. The

substance of a federal habeas corpus claim must first be

presented to the state courts and factual sameness will not

support a holding that constitutional assertions have been

exhausted. Picord v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d

438, 445 (1971); Minafee v. Estelle, 491 F. 2d 1096 (5th

Cir. 1974).

If, in an identical case, the state’s highest court has re-

centiy rendered a decision adverse to a federal habeas corpus

petitioner, and there is no reason to believe the state court

will change its position, a federal court should not dismiss

a petition for habeas corpus for failure to exhaust state

remedies. Layton v. Carson, 479 F. 2d 1275, 1276 (5th Cir.

1973). However, the case sub judice is sufficiently distin-

guishable from the recent Texas case of Ex Parte Francis,

510 S.W. 2d 345 (Tex. Crim. App. 1974) that exhaustion

is not excused. In Francis the Texas Court of Criminal

Appeals attached significance to the fact that petitioner

knew that a mandate had issued. In this case however, the

record reflects that applicant had no such knowledge.

It is therefore ORDERED that applicant’s petition for

writ of habeas corpus is dismissed without prejudice to her

right to exhaust her available state remedies, and to reapply

for federal habeas corpus relief after exhaustion of those

state remedies, if necessary.

Dated this 2nd day of April, 1975.

Robert M. Hill

United States District Judge

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IN THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 75-2570

Summary Calendar*

Mary FRANCES VICKERY,

Petitioner-Appellant,

v.

W. J. ESTELLE, JR., Dir ector,

Texas Dept. of Corrections,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Texas

(November 21, 1975)

Berore GEWIN, GOLDBERG and Dyer, Circuit Judges.

Per CurRIAM: AFFIRMED. See Local Rule 21.' It affirmatively

appears from the record that appellant has failed to exhaust

her state remedies.

* Rule 18, 5 Cir.; See Isbeil sw Inc. v. Citizens Casualty

Co. of New York, et al., 5 Cir. 1970, 41 F. 2d 409, Part I.

1See N.L.R.B. v. Amal ted Clothing Workers of America,

5 Cir., 1970, 430 F. 2d

Issued as Mandate:

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U. S. COURT OF APPEALS

FILED

JAN. 7, 1976

EDWARD W. WADSWORTH

CLERK

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-2570

Mary FRANCES VICKERY,

Petitioner-Appellant,

Vv.

W. J. EsTee, Jr., Director,

Texas Dept. of Corrections,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING

(January 7, 1976)

Berore Gewin, GoLpBerc and Dyer, Circuit Judges.

Per CurRIAM:

It Is Orperep that the petition for rehearing filed in the

above entitled and numbered cause be and the same is

hereby denied.

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EX PARTE BILLY EDWARD FRANCIS

510 S.W. 2d 345

No.48648.

Court of Criminal Appeals of Texas.

June 12, 1974.

Prisoner petitioned for writ of habeas corpus on ground

that he was entitled to be relieved of duty of serving two-year

sentence following judgment of conviction by the 99th Judi-

cial District Court of Lubbock County, Howard C. Davison,

J. The Court of Criminal Appeals, Morrison, J., held that

petitioner was not entitled to release although he was not

taken into custody for eight years after affirmance of con-

viction.

Petition denied.

Criminal Law 1216(6)

Where defendant was out on bond pending appeal of

judgment of conviction for forgery for which his punishment

was assessed at two years and conviction was affirmed and

it was not until more than eight years after affirmance that

authorities realized that defendant was not arrested on man-

date of court or carried to the Department of Corrections as

required, defendant was not entitled to be relieved from

duty to serve sentence.

John T. Montford, Lubbock, for appellant.

Jim D. Vollers, State’s Atty., Austin, for the State.

OPINION

MORRISON, Judge.

Petitioner, an inmate of the Department of Corrections,

seeks his release by writ of habeas corpus.

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Petitioner was convicted in the District Court of Lubbock

County of the offense of forgery on the 16th day of July,

1964. His punishment was assessed at two years, and he

appealed to this Court. This Court affirmed the conviction by

Per Curiam opinion and on the 12th day of February, 1965,

forwarded our mandate to the clerk of the convicting court.

We are unable to determine from the record on the hearing

on the writ of habeas corpus and from the court’s finding

of fact which accompanies such record whether the clerk of

the convicting court forwarded such mandate to the sheriff

of Lubbock County or not, nor do we deem it necessary to

so determine. Regardless of which official was derelict in his

duty, the fact remains that the appellant was not arrested

on the mandate of this Court, nor was he carried to the

Department of Corrections as the law requires. It was not

until November 2, 1973, that this oversight was discovered.

Petitioner was then arrested on the original mandate of

this Court and, following the hearing before the trial court

on a writ uf habeas corpus, he was transferred to the Depart-

ment of Corrections, where he is now confined.

This case should not be confused with cases where the

State was the moving party in bringing about the prinsoner’s

unwarranted release. Cf. Ex Parte Morgan, 159 Tex. Cr. R.

241, 262 S.W. 2d 728.

At the hearing the petitioner testified that he learned of

the affirmance of jis conviction by this Court at the time and

that he conferred with his bondsman. He does not assert

that he made his appearance before the convicting court as

was required by the terms of his bond.

Judge Morrow in writing for this Court concerning a simi-

lar state of facts, in Ex Parte Underwood, 94 Tex. Cr. R. 157,

248 S.W. 2d 551, said:

“The appeal bond which the appellant executed required

that he appear before the court in which the judgment

was rendered and abide by the judgment of the Court

of Criminal Appeals in this case. It was by reason of

A-7

this bond that he was allowed to rema.n at large pend-

ing his appeal, and if he had obeyed his terms, doubtless

the sheriff would have put him in jail, but having failed

to do so, we find no warrant in the law for the conclusion

that he has satisfied the judgment against him.”

Soon thereafter when again writing for the Court in Ex

Parte Salisbury, 98 Tex. Cr. R. 341, 965 S.W. 696, Judge

Morrow said:

“A duty likewise rested upon the appellant, and the

sureties on his recognizance. He might have paid the

fine or surrendered himself; so might the sureties. None

of the officers of the state had the right to affirmatively

release the appellant or waive the state’s right to the

satisfaction of the judgment of the court. They having

no right to do so by affirmative action, it is our opinion

that their negligence in performing the duties which

the law imposed upon them would not operate to

discharge the appellant from the necessity of suffering

the penalty imposed upon him by the judgment of

conviction.”

See also Rayburn v. State, 146 Tex. Cr. R. 204, 172 S.W.

2d 505.

In Weber v. Mosley, 241 Mo. App. 727, 242 S.W. 2d 273,

the St. Louis Court of Appeals wrote an exhaustive opinion

from which we quote in part:

“In still others, [cases where the accused has not been

promptly confined under the judgment of the court]

after conviction is affirmed by the appellate court

(defendant having been out on bond pending appeal)

a delay occurs in taking him into custody, and the

question arises whether the period of the delay is to

be credited on the sentence. Ex Parte Underwood, 94

Tex. Cr. R. 157, 248 S.W. 551; Ex Parte Voiker, 120 Neb.

508, 233 N.W. 890, 72 A.L.R. 1267; People ex rel. Kelly

v. Ragen, 392 Ill. 423, 64 N.E. 2d 872; Ex Parte Hill,

86 Okl. Cr. 318, 192 P. 2d 849.

A-8

“In all of these cases the courts have denied the peti-

tioner’s application for release on habeas corpus, and

have required the prisoner to serve his term notwith-

standing the delay.”

Later in the opinion, we find the following:

“Any other holding under the facts in the case at bar

would permit ministerial officers to thwart and nullify

the judgment of courts.”

We quote from 24B C.J.S. Criminal Law § 1999, p. 688, as

follows:

“The people of a state are interested in punishment of

those convicted of crimes and public interest should

not be subservient to illegal acts and default of officers

who had charge of prisoners.”

In a brief filed for the first time in this Court petitioner

makes several assertions, some of which wil be discussed.

He first contends that he was denied his constitutional

right to a speedy trial and appeal. A recitation of the facts

reflects that petitioner’s trial and appeal were promptly

disposed of and the reason he is now incarcerated is that he

failed to take appropriate action when he learned that his

conviction had been affirmed. Had he complied with the

terms of his bond on appeal,' he would have long since served

his sentence.

One of petitioner’s contentions is that he has been “in

custody” for the purpose of serving his sentence while on

bond awaiting the action of this Court. He relies upon the

recent opinion of the Supreme Court of the United States in

Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571,

36 L. Ed. 2d 294 (1973). The Court there was construing the

term “in custody” in order to determine petitioner’s eligi-

bility for writ of habeas corpus and not as credit for time

served in jail.

“Shall appear before this Court from day to day and from term

to term of the same and not depart without leave of the Court in

order to abide the judgment of the Court of Criminal Appeals of

the State of Texas.”

CO eo

A-9

Smith v. Swope, 9 Cir., 91 F. 2d 260, also relied upon by

petitioner, is not in point because i in that case petitioner was

arbitrarily placed in the custody of another jurisdiction, and

ns court held that he should have been given credit for

such time.

After full review of all of petitioner’s contentions, we have

concluded that the petitioner is not entitled to the relief

prayed for. It is so ordered.

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NO, 51,047.

S.W. 2d

Ex parte

Arturo T. ESQUIVEL

Habeas Corpus Application

from Bexar County

Attorney: Stanley G. Schneider

OPINION

This is a post conviction application for writ of habeas

corpus filed pursuant to Art. 11.07, C.C.P.

Petitioner was convicted of murder with malice and

assessed a term of life imprisonment. He was also convicted

of robbery by assault and received a 5-year sentence. Peti-

tioner’s writ of habeas corpus alleges he was denied due

process of law and subjected to multiple punishments by

being denied certain time credits toward parole eligibility’

of the life sentence.

The factual circumstances involved in petitioner’s allega-

tions are as follows:

(1) On Feb. 16, 1960, petitioner was convicted on his

plea of not guilty to the jury to the offense of robbery

by assault in Cause No. S-58548 and assessed punish-

ment of 5 years.

(2) On March 21, 1960, petitioner was convicted of

the offense of murder, after his plea of not guilty to a

jury, in Cause No. S-58519, and assessed a life term of

imprisonment.

(3) On May 3, 1960, petitioner was sentenced in

both of the above-mentioned cause numbers and given

5-year and life terms, respectively, with no notice of

1 Since a “life” sentence er be discharged, the only neces-

mM, AM... ~— caelite towend this life sentence would be

to determine parole eligibility.

A-11

appeal being given in the robbery case but with a direct

appeal perfected in the murder case.

(4) On May 4, 1960, petitioner was transferred to the

Texas Department of Corrections to begin serving his

5-year sentence for robbery during the pendency of his

appeal in the murder conviction.

(5) On Nov. 9, 1960, this Court, in our appeal

#32,451, affirmed petitioner’s conviction in a per curiam

opinion. The mandate of this Court in that case was

issued on Nov. 25, 1960, commanding Criminal District

Court #2 of Bexar County to execute the judgment

and sentence in trial court Cause No. S-58519. How-

ever, due to some clerical error on the part of the dis-

trict clerk’s office in Bexar County, the mandate of this

Court was never filed with the district court, and as a

result, the Texas Department of Corrections was never

notified of the existence of petitioner’s life sentence.

(6) Petitioner remained in the Texas Department of

Corrections until April 14, 1963, at which time he dis-

charged his 5-year robbery sentence.

(7) Over the next few years, petitioner was convicted

of two other felony offenses, serving time in the Texas

Department of Corrections, and discharging these sen-

tences on two occasions.’

(8) The clerical error which resulted in the Texas

Department of Corrections not being aware of the

existence of the life sentence assessed in Cause No.

*The records reflect that itioner was convicted in Cause

#64262 of the offense of bur and assessed a 5-year term of

imprisonment, said sentence beginnin on Jan. 5, 1965. He dis-

charged this sentence on Jan. 2, 1968.

On April 3, 1969, petitioner was sentenced in Cause #68-763 to

a 6-year sentence for theft, and discharged this term of imprison-

ment on July 18, 197 .

Additionally, petitioner was convicted a fifth time and assessed a

7-year term of imprisonment on April 5, 1973, in Cause #73-CR-252

for the offense of lary. The petitioner is still under confinernent

in the Texas Department of Corrections on this 7-year sentence.

A-12

S-58519 was not discovered until apparently 1973, with

the mandate not being filed with the Bexar County

District Clerk’s Office until April 3, 1973. As a result of

this late filing of this mandate, petitioner’s sentence in

Cause No. S-58519 did not begin until Feb. 21, 1973.

Petitioner argues he has been denied many years of time

credit toward parole eligibility of the life sentence because

of the clerical error in failure to notify the Texas Depart-

ment of Corrections of the existence of the life sentence.

Petitioner asks for a complete cancellation and nullification

of the life sentence, relying on Shields v. Beto, 370 F. 2d

1003 (5th Cir.), and Clifton v. Beto, 411 F. 2d 1226 (5th

Cir.)

The trial court found, based upon stipulations between

the State and petitioner, that petitioner had no knowledge

that the life sentence was still an effective conviction until

the clerical error was finally discovered, and that petitioner

was not at fault in his premature release from the Texas

Department of Corrections. The trial court further found

that petitioner’s sentence in Cause No. S-58519, the con-

viction for murder, should begin as of Nov. 24, 1959, the

date of petitioner’s original confinement.’

The record shows a clerical error in the Bexar County

District Clerk’s Office effectively caused the officials of the

Texas Department of Corrections to release petitioner from

that institution on three separate occasions, without any of

the parties concerned having knowledge of the valid and

existing life sentence outstanding against petitioner. Under

these circumstances, Ex Parte Downey, 471 S.W. 2d 576, is

controlling. When the terms of imprisonment run concur-

rently, as in the case at bar, sentence shall begin to run on

* The trial court’s granting additional back jail time credit to

Nov. 24, 1959, cannot be sustained, at least under the record before

this Court, inasmuch as none of the records reflect. that the trial

court originally intended to grant petitioner pre-sentence jail time

credit. Without some indication that the trial court originally in-

tended petitioner to have pre-sentence jail time credit, the trial court

is without authority to grant such credit at this time. See Ex Parte

Washburn, 459 S.W. 2d 637; Vessels v. St., 467 S.W. 2d 259.

A-13

the same day sentence is pronounced, and, absent an escape,

a violation of parole or some fault on the part of the prisoner,

said sentence must be continuous and the prisoner cannot

be required to serve his sentence in installments. See

Ex Parte Reynolds, 462 S.W. 2d 605; Ex Parte Lawson,

266 S.W. 1101; White v. Pearlman, 42 F. 2d 788 (10th Cir.) ;

Ex Parte Morgan, 262 S.W. 2d 728; Ex Parte Griffin, 258

S.W. 2d 324. We hold petitioner is entitled to “flat time”

credit toward his parole eligibility of the life sentence in

Cause No. S-58519, as of May 3, 1960, the date of formal

sentencing in that case.‘

In addition, petitioner has earned certain “good time”

credit during his previous commitments in the Texas De-

partment of Corrections pursuant to Art. 6184(1), V.A.C.S.

Although he was erroneously discharged from the Texas

Department of Corrections on several occasions, we hold

petitioner is nevertheless entitled to all “good time” credits

accumulated during his prior commitments in the Texas

Department of Corrections just as if he had been contin-

uously serving the life sentence.’ See North Carolina v.

Pearce, 395 U.S. 711, 89 S. Ct. 2072, at fn. 13; Ex Parte

Bennett, 508 S.W. 2d 646; Ex Parte Enriquez, 490 S.W. 2d

546.

For the reasons stated, petitioner’s writ of habeas corpus

has merit, and we hold that the Texas Department of Cor-

* The statutory scheme in effect at the time of petitioner’s initial

confinement provided that, in cases in which a direct appeal was

taken, sentence began to run the date the mandate ieoned from the

Court of Criminal Appeals, with discretion in the trial judge to grant

credit for time in jail pending appeal. This statutory scheme has

been held deficient, and petitioner is constitutionally entitled to

credit for jail time pending appeal. Robinson v. Beto, 426 F. 2d

799 (5th Cir.); Ex Parte Freeman, 486 S.W. 2d 556.

* The holding in this case is not in conflict with our holding in

Ex Parte Francis, 510 S.W. 2d 345. In Francis the petitioner was

convicted, sentenced and released on bond pending the outcome

of his direct appeal. Due to a clerical error, petitioner was never

notified as to the disposition of the appeal until many years later

and he was then arrested and requi to serve the remainder of

his sentence. Francis was never required to serve any portion of his

sentence until after the completion of the appellate process.

A-14

rections should make a correction of petitioner’s records to

reflect that the life sentence assessed in Cause No. S-58519

should begin as of May 3, 1960, with petitioner being given

all “flat time” credit from that day forward; and that further,

petitioner be additionally credited with any “good time”

credit that he has accumulated since May 3, 1960, in the

Texas Department of Corrections toward his parole eligi-

bility date in the life sentence assessed in Cause No. S-58519.

However, petitioner’s request that the life sentence be va-

cated and set: aside is denied, as petitioner has been granted

all the relief to which he is entitled.

It Is So OrpERED, and copies of this opinion shall be sent

to the Texas Department of Corrections.

Morrison, Judge

(Delivered January 7, 1976)