Petition — Howell v. Thomas

Supreme Court Of The United States

OCTOBER TERM, 1980

TRAE AR COUNTT, TUKAS 2.0.00. vccccescvesee Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NUMBER BELOW: 80-8,048

Tom S. McCorkle

500 Katy Building

701 Commerce Street

Dallas, Texas 75202

(214) 742-1411

Attorney for Petitioner

TREVATHAN PRINTING COMPANY. NEWPORT, ARKANSAS

Supreme Caurt, U.S,

FILED

AUG 12 1980

i

Questions Presented

QUESTION ONE:

(1) WAS THE JUNE 25, 1979 RULING OF THE

TEXAS COURT OF CRIMINAL APPEALS DENYING

LEAVE TO PETITION FOR HABEAS CORPUS BASED

UPON ART. 44.38, TXCCRP?

(2) IS ART. 44.38, TXCCRP REPUGNANT TO THE

DUE PROCESS OR THE EQUAL PROTECTION

CLAUSES OF THE 14TH AMENDMENT TO THE

UNITED STATES CONSTITUTION?

QUESTION TWO: (Alternative to No. 1)

HAS PETITIONER BEEN DENIED EQUAL PROTEC-

TION OF THE LAW UNDER THE UNITED STATES

CONSTITUTION THROUGH THE DENIAL OF THE

RIGHT OF APPELLATE COURT REVIEW OF THE

STATE LAW CLAIMS RAISED BY HIM ON JUNE 25,

1979 EITHER BY APPEAL, HABEAS CORPUS OR ANY

OTHER MEANS?

QUESTION THREE:

IN CRIMINAL ACTIONS INVOLVING IMPRISON-

MENT, DOES THE FEDERAL DUE PROCESS

GUARANTEE OR THE FEDERAL EQUAL PROTECTION

GUARANTEE REQUIRE THAT THE SENTENCING

FUNCTION (i.e. the entry of comand that the adjudicated

punishment be carried into execution coupled with any law-

ful or proper directions as to the terms and conditions of

confinement) BE PERFORMED BY THE JUDGE OR

MAY THE FUNCTION BE CONSTITUTIONALLY PER-

FORMED BY MINISTERIAL PERSONNEL?

ii

QUESTION FOUR:

(1) SHOULD PETITIONER HAVE BEEN GRANT-

ED AN EVIDENTIARY HEARING UPON HIS CLAIM

T HE HAS ALREADY SERVED THE SENTENCE IN

FULL AND HAS ALREADY PAID THE FINE IMPOSED

UPON HIM FOR CONTEMPT OCCURRING BEFORE

JUDGE WALKER ON MAY 26, 1971?

(2) IS THE CLAIM UNDER THIS ISSUE BEING

PREMATURELY RAISED?

(3) DOES IT VIOLATE ANY FEDERALLY

GUARANTEED RIGHTS TO FINE AND IMPRISON FOR

TWICE THE AMOUNT OF PUNISHMENT ADJUDI-

CATED?

QUESTION FIVE:

IS PETITIONER CORRECT IN HIS CONTENTION

THAT A CERTIFICATE OF PROBABLE CAUSE, (being

a prerequisite to an appeal to the Federal Court of Appeals

by a state prisoner) MAY NOT BE DENIED UNLESS THE

PETITION IS EITHER REPETITIOUS OR PLAINLY

FRIVOLOUS? DOES THE WITHIN PETITION FIT ANY

SUCH CATEGORY? DID THE DISTRICT JUDGE OR

THE JUDGES OF THE FIFTH CIRCUIT APPLY THE

PROPER TEST?

iii

INDEX

Page

QUESTIONS PRESENTED... nc ccsccccsccccccscsaen i-ii

SM ons o CS be be obs su dt peed ieee o eeue oe 2

I ask ook dacs die barech'e oad’ ninne ¢ee'eses 2

CONSTITUTIONAL PROVISIONS, STATUTES

PN eR CF Be) Ene 3

ESET CON BU NIE Visib ccd cbeccscvcrcceccees 4

REASONS FOR ALLOWING THE WRIT ............. 11

One & Two — The Doors to a State’s Appellate

Court May Not Arbitrarily be closed to an

SD PN ied sab doweecdScadasewisrseres 11

Three — Sentencing, Being a Critical Stage,

May Not Constitutionally Be Omitted ........... 20

Four — Attack Upon the Three Day Process

ee Se ND ach a kadnn sdb hse csaw occas 25

Five — A Certificate of Probable Cause Should

Ee ere EP e er Peer 27

ee ie ey ee Se ee VOTE E VET PT ELT TOE TE 32

iv

INDEX TO APPENDIX

Proceedings In State Trial Courts:

Judgment of Contempt [for refusing to name

crwaeaesas’ te ELIE CTT CTT TEETER A-1

Judgment of Contempt [for failure to make

full disclosure to Judge Walker] ............ A-2

Proceedings In Texas Court of Criminal Appeals:

Motion For Leave to File Original

Application for Habeas Corpus .............. A-3

Denial of Application for Habeas Corpus ......... A-3

Proceedings In U.S. District Court:

Findings, Conclusions and Recommendation

of the United States Magistrate ............. A-4

Order [Adopting Magistrate’s Findings] ....... A-10

IN Sra Sea chi code vcrcwes suas ence uate A-11

a esa 5 0H kas ev AEE Rese RAS Oe Cade A-11

[Recommendation and Order Thereon —

Re TIN Go og len ck Mensa ous cud cens A-12

Proceedings In The Fifth Circuit:

Riise AS hook) cae ssn Kahne sae ee A-13

Gib 5 Rs Kak Wie CE eek bh ees Gee Ree os A-13

Other

re a rane A-14, 15

po | Rare eerie ar re re A-16, 17

Se A bn sk 5b eb dred eek cet reks al A-18, 19

Vv

CITATIONS

Page

Argersinger v. Hamlin, 407 U.S. 25 (72) ........... 00 ee 23

Arnold v. State, 493 SW2d 801 (TXCR 73) ............. 18

Ball v. United States, 140 U.S. 118 (1891) .............. 23

SEOs ©. SEO, BOF Ge GOW CD ok k ant ecc coc cvaveussves 29

Blair v. California, 340 F.2d 741 (9-CA 65) ............ 31

Braden v. Court, 410 U.S. 484 (73) 0... .. cece eee eee 26

Capetta v. Wainwright, 286 FS 404 (SDFL 68) ......... 31

Coward, Ex Parte, 222 SW2d 531 (TXSM 20) .......... 14

Dillingham v. Wainwright, 422 FS 259 (SDFL 76),

OtRG, GES PAG 1SGP COP is TT) 2 ccc cccsccccccecces 31

Duncan v. Louisiana, 391 U.S. 145 (68) ................ 18

Fay v. Noia, 372 U.S. 391 (63) ...........ccceees 17, 18, 29

Griffin wo. Tilinole, 361 US. 13 (G6)... cccccccccccces 20

Groppi v. Leslie, 404 U.S. 496 (72) ......... cece eee eee 23

Hicks v. Oklahoma, 40 CCH SCT B 3050 (June

DE Udine. ck ackuceveee chevahhshschemes anu’ 19

Howell, Ex parte, 488 SW2d 123 (TXCR 72) dism.

gO 8 PN re ere eee 2, 5

Howell v. Jones, 516 F.2d 53 (5-TX 75) cert. den.

RE | Pree ere reer re 2, 4

Howell v. Texas, 559 SW2d 432 (TXCVAP 77) ....... 2, 6

Howell v. Thomas, 566 F.2d 470 (5-TX 78) cert.

Gn: SIO Ts Ge CUD ves ceicntcentedeciscatcees 2,6

vi

Johnson v. Arizona, 462 F.2d 1352 (9-AZ 72) .......... 20

McNally v. Hill, 293 U.S. 131 (34) ........ cece ee ee eee 26

Mempha v. Rhay, 389 U.S. 128 (67) ........ cee ee eee eee 23

Morrissey v. Brewer, 408 U.S. 471 (72) ........... 0008 19

North Carolina v. Pearce, 395 U.S. 711 (69) ............ 23

Peyton v. Rowe, 391 U.S. 54 (68) ....... ccc eecccccees 26

Rinaldi v. BO, Se We Pe AGO) bain oie cacdicccece 31

Sanders v. United States, 373 U.S. 1 (63) .......... 17, 18

Smith v. Digmon, 434 U.S. 332 (78) ......... cece eee eee 27

Supercinski, Ex parte, 561 SW2d

ie Cae FEE whi odceneens 7, 13, 14, 16, 17, 18, 19, 20

Townsend v. Burke, 334 U.S. 736 (48) ............ 0c eee 23

Turnbow v. Estelle, 510 F.2d 127 (5-TX 75) ........ 23, 24

United States v. Huff, 512 F.2d 66 (5-GA 75) ....... 23, 24

Vitek v. Jones, 40 CCH SCT B 1495 (March 25, 80) ..... 19

Waters, Ex parte, 499 SW2d 309 (TXCR 73) ........... 17

Wingo v. Wedding, 418 U.S. 461 (74) ........... cece eee 30

Wolff v. McDonnell, 418 U.S. 539 (74) ..............4. 19

Woodruff, Ex parte, 483 SW2d 951

Se TT Eos Cae ve vee keke ocean eure aetae 13

vii

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

Waited States Comat., AMGs. AV on cccccscccuscscccencs i

EE Shai os Wy dae vestve cr ineaeeeeens 3

I cc vies 60 <5 usin dons ph 88 4, 9, 27, 28

I, SOI 0s osc da abbe esas ae ce bne srs 4, 13, 21

EE SD 050 6h 6s 2 vv theo bee hua edese waa tens 21

I o6 is os bake ua COV die ades Caeemee 22

ee rerrererr es orer rr rey rT 22

eee i, 3, 11, 17, 18, 19, 20

OTHER

Appendix to Petition, P.A.3-8 (78),

Howell v. Thomas, U.S. SCT No. 77-1655 ............ 5

Advisory Comm. Notes foll. Rule 9,

ERO MONE, BO A, oo ccc ccc cece Meccences 17

ge ee ere eee Per ee ee Te eT 30

Sokol, Federal Habeas, 196 (69) ..........cccccccccees 31

Supreme Court Of The United States

OCTOBER TERM, 1980

NO. 80

Sy SE DINE +g 6c u'n'k bb 002.0608 bee dicleeen Petitioner

Vv.

CarL THOMAS, SHERIFF,

i 5 | errr re rere Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NUMBER BELOW: 80-8,048

The Petitioner, Charles Ben Howell, complains of the

respondent, Carl Thomas, Sheriff, Dallas County, Texas

and petitions for the issuance of a writ of certiorari to the

United States Court of Appeals for the Fifth Circuit to

review the judgments and orders entered in that Court in

its Cause No. 80-8048 where this petitioner was petitioner-

appellant and this respondent was respondent-appellee.'

1Unless otherwise indicated, all emphasis has been supplied by

petitioner.

Opinions Below

The Magistrate’s report, unpublished, filed September

18, 1979 is in the petitioner’s appendix (A.4) * Neither the

Fifth Circuit nor the District Court filed any opinion or

engaged in any discussion of the facts, the law or the

grounds of decision, orally or in writing. Inasmuch as noth-

ing was available to publish, nothing was published. The

appendix hereto contains the District Court’s judgment

dated October 10, 1979 (A.11) and the Fifth Circuit’s orders

denying certificate of probable cause dated March 17, 1980

(A.13) and denying reconsideration dated April 14, 1980

(A.13).

Opinions in related cases are:

Texas Court of Criminal Appeals, November 15, 1972,

488 SW2d 123, dism. 414 U.S. 803 (73).

Fifth Circuit, Original Appeal, July 16, 1975, 516 F.2d

53, cert. den. 424 U.S. 916 (76).

Texas Court of Civil Appeals, November 23, 1977, 559

SW2d 432 (77).

Fifth Circuit, January 16, 1978, 566 F.2d 470, cert. den.

439 U.S. 826 (78).

Jurisdiction

The order of the Court of Appeals denying certificate

of probable cause was filed March 17, 1980 (A.13). A peti-

2In referring to the record of proceedings in the courts below, peti-

tioner will employ the following abbreviations: (A. ) — Petitioner’s

Appendix attached to the rear of this petition; (R. ) — Record of

Proceedings prepared by U.S. District Clerk, Northern District of

Texas. It should be noted that many of the papers from the latter

court are copies of court papers originally filed elsewhere. No

appendix was filed with or required by the Fifth Circuit.

tion for rehearing (Motion For Consideration) was timely

filed on March 31, 1980 and denied on April 14, 1980 (A.

13). Within 90 days thereafter and on July 2, 1980, an appli-

cation for extension of time to petition for certiorari was

filed with the Clerk of this Court. On July 2, 1980, Mr.

Justice Powell granted such extension to and including

August 12, 1980. The jurisdiction of the Supreme Court is

invoked under 28 USC §1254(1).

Constitutional Provisions, Statutes

and Rules Involved

Art. 42.02. Texas Code of Criminal Procedure. A

“sentence” is the order of the court in a felony or mis-

demeanor case made in the presence of defendant, except

in misdemeanor cases where the maximum possible

punishment is hy fine only, and entered of record,

pronouncing the judgment, and ordering the same to be

carried into execution in the manner prescribed by law.

Art. 44.38. Texas Code of Criminal Procedure. The

judgment of the Court of Criminal Appeals in appeals

under habeas corpus shall be final and conclusive; and no

further application in the same case can be made for the

writ, except in cases specially provided for by law.

4

Statement of the Case

Petitioner is a leper of the law. The Texas Court of

Criminal Appeals refused to allow him to file a petition for

habeas corpus. The United States Magistrate refused to

conduct an evidentiary hearing. The United States District

Judge declined to hear evidence or argument and failed to

substantively comply with R.22(b), FRAP requiring him

to state his reasons for denying certificate of probable cause.

The Court of Appeals proceeded to uphold denial of the

certificate thereby preventing petitioner from briefing or

arguing his case in that court.

Perhaps they were all of them infected with the

notion that this petitioner has filed too many petitions

already. However, as we all know, such is not the test.

Fact Statement-Background: As reported in Howell v.

Jones, 516 F.2d 53 (5-TX 75), petitioner Howell became

embroiled in controversy with a state court judge, the

Honorable Dee Brown Walker concerning a May 26, 1971

divorce hearing. The controversy resulted in a contempt

hearing before another state judge, the Honorable Louis T.

Holland, on July 27, 1972. On that date Judge Holland

ordered petitioner to jail for three days and fined him

$100.00 upon a finding that he “failed to make full disclosure

[to Judge Walker] as to all of the facts surrounding the

matter before the Court after the Court had directly in-

quired” (A.3). By separate judgment of the same date,

Judge Holland further held that petitioner had refused to

reveal the names of the attorneys consulted by petitioner

regarding his contempt case (A.1). Petitioner was ordered

to jail until he revealed the names of the said atiorneys.

Punishment of $500.00 fine and thirty days in the county

jail was also set.

Petitioner thereafter unsuccessfully sought habeas

corpus relief, both state and federal. Ex parte Howell, 488

SW2d 123 (TXCR 72); Howell v. Jones, supra.

The identical incidents were made the subject of a dis-

barment proceedings. On July 16, 1976, a state court jury,

by special verdict effectively exonerated petitioner of all

charges. The jury found that Howell’s refusal to reveal the

names of attorneys consulted by him did not obstruct the

administration of justice. Concerning the May 26, 1971

dispute with Judge Walker, the jury rejected Judge

Walker’s version of the facts as untrue and accepted peti-

tioner’s version. The material portions of the special verdict

read as follows:

“Do you find from a preponderance of the evidence

that on or about the 26th day of May, 1971, at the time

he obtained a default judgment in an action pending in

Domestic Relations Court Number 2 involving divorce,

property and custody of minor children, Charles Ben

Howell did not tell Judge Walker that another action

involving the same parties regarding divorce, property,

and custody of minor children was pending in Domestic

Relations Court Number 3?

ANSWERED: NO.”

“Do you find from a preponderance of the evidence

that on or about the 26th day of May, 1971, at the time

he obtained a default judgment in an action pending in

Domestic Relations Court 2 involving custody of minor

children, Charles Ben Howell did not tell Judge Walker

that a hearing involving the custody of minor children

had been set by Judge Gibbs for June 2nd, 1971?

ANSWERED: NO.”

“Do you find from a preponderance of the evidence

that when Charles Ben Howell failed to answer a

question relating to his motion for continuance which

he was instructed by Judge Holland to answer, if you

have so found, that he engaged in conduct that was

prejudicial to the administration of justice?

ANSWERED: NO.”

The foregoing are quoted from the record in Howell v.

Thomas, U.S. S.CT. No. 77-1655 Apdx. to Pet. P.A.3-8 (78).

A newspaper account of that trial is also annexed hereto (A.

14). The jury verdict was overruled in part by the judge

conducting the trial, which action was affirmed in Howell v.

Texas, 559 SW2d 432 (TXCVAP 77).

On the basis of the jury verdict in the disbarment case,

petitioner again unsuccessfully sought federal habeas

relief. Howell v. Thomas, 566 F.2d 470 (5-TX 78) cert. den.

439 U.S. 826 (78).

Fact Statement — Present Appeal. The Honorable Dee

Brown Walker has been at all times judge of the 162nd

District Court of Dallas County. The divorce case which

generated this matter was, on May 26, 1971, pending in

Domestic Relations Court Number Two and Judge Walker

was substituting for the Honorable Greer Dowell who was

then judge of that court. When the controversy arose,

Judge Dowell declined to become involved and « retired

judge, the Honorable Louis T. Holland was appointed to

preside over the contempt proceedings against petitioner

in Domestic Relations Court No. 2. Thereafter, Judge

Walker had no jurisdiction over any proceedings against

7

petitioner Howell and his status was that of complaining

witness only.

The Honorable Louis T. Holland died on April 23, 1978

(R.4) while the second habeas proceedings were being

prosecuted and no other judge was ever appointed to pre-

side over the contempt proceedings against petitioner. At

the time he died, Judge Holland had never formally sen-

tenced petitioner with respect to the 30 day conviction (R.

3-4).

On June 7, 1979, without any order or direction from

the Judge of Domestic Relations Court No. 2 or from any

other judge having jurisdiction in the case, the District

Clerk of Dallas County issued and deliver2d to respondent

sheriff two wriis or processes directing respondent to place

petitioner in jail in satisfaction of the three day and the

30 day contempt judgments (R. 8, 17, 19). According to the

newspaper accounts annexed hereto, the Clerk acted be-

cause Judge Walker, acting ex parte, ex cathedra and with-

out jurisdiction brought pressure to bear (A.16-19).

In the meantime, during 1977, the Texas Court of

Criminal Appeals had granted habeas corpus relief to an

attorney in another case on grounds that the attorney had

been incarcerated without formal sentencing. Ex parte

Supercinski, 561 SW2d 482 (TXCR 77). Considering Super-

cinski to be a “white horse” case, petitioner Howell’s coun-

sel prepared a state habeas petition and an accompanying

motion for leave to file the habeas petition and personally

carried them to Austin, Texas for filing with the Texas

Court of Criminal Appeals*® (R. 6, 10-53).

8By agreeing to the allegation that state remedies have been exhaust-

ed (R. 2, 8, 62, A.6), respondent has effectively conceded that peti-

tioner followed the only route available under Texas law to obtain

appellate review of his convictions.

On June 25, 1979 at approximately 4:00 p.m. petitioner’s

counsel personally entered the office of the Clerk of the

said court and presented for filing the petition and motion

for leave to file the same (R. 10-12). A supporting brief

was also presented (R. 27-53). The petition and brief urged

the Supercinski case and all other matters presented by this

petition. Counsel was then and there ready to speak in

support of the case and so indicated to the Clerk. However,

counsel was given no opportunity to do so. While counsel

was left waiting in the Clerk’s office, the petition and

supporting brief were presented to the Court for its exami-

nation en camera and in less than thirty minutes, counsel

was handed the presiding judge’s memorandum denying

leave to file the petition (R. 6-7, A.3-4).

On June 27, 1979, petitioner filed a new petition for

federal habeas (R. 1-53). By rotation, the Clerk assigned

the case to the Honorable Patrick E. Higginbotham. Judge

Higginbotham apparently found the case to be of argueable

merit because, on the same date, he entered an order admit-

ting petitioner to bail (R. 56). For such action, he was

excoriated in the local press by Judge Walker (A.16-17).

One day after his bail order, Judge Higginbotham transfer-

red the case to the Honorable Robert M. Hill, presumably

because all prior proceedings relating to the same matter

had been handled by Judge Hill (R. 57).

On September 17, 1979, Judge Hill referred the case to

Magistrate Sanderson (R. 72). Magistrate Sanderson con-

sidered the case for only one day and on September 18,

1979, the following day he filed a recommendation that

habeas be denied (A. 4-10).

On October 10, 1979, only one day after the filing of

petitioner’s written objections to the Magistrate’s report

(R. 79-95), the District Court entered an order reciting that

it had considered such objections and that it had further

made “an independent review of the pleadings, files and

records in this case.” The Magistrate’s recommendation was

approved and habeas relief was denied (A.10).

A motion for certificate of probable cause was filed on

October 16, 1979 (R. 98), and was denied on the following

day, October 17, “because of the reasons set out in the

Findings, Conclusions and Recommendation of the United

States Magistrate” (A.12).

Subsequently, a motion for new trial, asking inter alia

for reconsideration of the denial of probable cause (R. 101-

105), was overruled on October 26, 1979 (R. 106). In the

motion for new trial, petitioner asked that if the Court

continued to deny the certificate, that the Court state the

reasons why the certificate should not issue in accordance

with R.22(b) FRAP. However, the Order Overruling New

Trial was wholly silent with respect to the request that the

Court reconsider the denial of a probable cause certificate.

Notice of Appeal was thereafter filed on Monday,

November 26, 1979 (R. 107). On January 4, 1980, Magistrate

Sanderson filled out and filed a mimeographed form recom-

mending that probable cause be denied, apparently on

grounds that petitioner had restricted his petition to claims

under state law (A.12). On the same day, the District Court

again denied probable cause by signing the bottom portion

of the same form (A.12). The printed form contains a

recital that the Court has conducted a review of the files

and records of the case. The space allowed for the District

Judge to set forth his reasons for denial was not filled out

(A.13).

10

A motion for certificate of probable cause was filed

with the Fifth Circuit on January 22, 1980. In the motion,

petitioner argued, as he here presents, that the District

Court had not applied the proper test in denying probable

cause (M/CPC. 11-14). The motion was denied by a single

judge (A.12) and subsequently by a panel of the Fifth

Circuit (A.13) from which action, this petition for certiorari

is being prosecuted.

11

Reasons For Allowing The Writ

ONE & TWO

THE DOORS TO A STATE’S APPELLATE COURT MAY NOT

ARBITRARILY BE CLOSED TO AN HABEAS PETITIONER

Obviously, it is not for the federal courts to dictate

how issues of state law shall be decided save to determine

if they contravene the Constitution and laws of the United

States. However, it is a complete non-sequitur to say that

inasmuch as state courts are free to shape state law accord-

ing to their own choosing, that they are free to arbitrarily

deny access to the state’s appellate courts.

The key word, of course, is “arbitrarily.” We think that

the present record reflects an arbitrary denial of access to

the court. Petitioner was denied leave to file an habeas

petition presenting serious questions of state law. The denial

was based upon en camera review of the petition lasting

less than half of an hour. We present that the right of

reasonable access to the courts is a federally protected

right. If petitioner be correct in stating that the peremptory

action of the Texas Court was grounded upon Art. 44.38

TXCCRP, it follows that the statute is constitutionally

repugnant.

Petitioner does not (emphasis: does not) mount a

facial challenge to the judge-made requirement of the Texas

Court of Criminal Appeals that prior leave must be obtain-

ed in order to file a petition for habeas in that court. The

federal scheme of habeas review contains parallel provisions

for predicate review prior to plenary review. Both systems

are entitled to insulate themselves from the frivolous and

the trivial. On the other hand, neither system may consti-

12

tutionally employ such predicate review provisions as a

means to deny plenary review of serious claims.

We proceed to expose the state law claims that were

laid before the Texas Court of Criminal Appeals, not for

the purpose of having them decided by the Supreme Court,

but only for the limited purpose of demonstrating that

petitioner’s state law claims were indeed serious ones.

Ground Four-A of the writ application to the Court of

Criminal Appeals read:

“The process issued by the District Clerk which

calls for relator to serve thirty days in jail and pay

$500.00 fine is void because no judicial order of com-

mitment in writing has been issued by any Judge of

any Court having jurisdiction, calling for the Court’s

judgment to be carried into execution in the manner

prescribed by law” (R. 37).

The argument under such ground, six pages in length

(R. 48-53), pointed out that the judgment relating to the

four attorneys contempt was actually two judgments con-

tained within a single document. With respect to the so

called “civil” (more properly denominated as “coercive’’)

contempt, Judge Holland, the trial court judge, obviously

entered his command that the adjudicated punishment be

carried into execution. However, just as obviously, with

respect to the thirty day and $500.00 criminal (punishment

imposed for past infraction) contempt portion of his judg-

ment, he withheld the entry of a similar command that the

adjudicated punishment be carried into execution. In all

likelihood, the withholding of a commitment order upon

the thirty day conviction was deliberate. Judge Holland

desired to reserve the opportunity to take a second look at

13

the punishment imposed after the coercive term of

imprisonment had been completed. Judge Holland is now

deceased and neither he nor any other judge has completed

the imposition of sentence with respect to the thirty day

conviction.

Petitioner argued to the Texas Court of Criminal

Appeals that Arts. 42.02 et seq. TXCCRP was applicable

and that he could not be imprisoned until a sentencing hear-

ing had been held in compliance with the terms of those

statutes. Primary emphasis was laid upon Ex parte Super-

cinski, 561 SW2d 482 (TXCR 77) holding that a lawyer

adjudged guilty of contempt could not be imprisoned be-

cause the trial court judge had never completed the

imposition of sentence.

In response to the foregoing argument, the United

States Magistrate adopted respondent Sheriff’s authorities,

took upon himself the mantle of a judge of the Texas

Court of Criminal Appeals and proceeded to rule against

petitioner on principles of state law. It is submitted that

neither a federal magistrate nor a federal judge may con-

strue state law in connection with a federal habeas applica-

tion, save on a preliminary basis. The Magistrate should

have only reviewed the state claims to the extent necessary

to determine if the state court acted arbitrarily in refusing a

plenary hearing thereon. The ultimate disposition of the

state claims is for the state court alone.

We further think the Magistrate’s ruling upon the

state claim to be untenable. Based upon citations dated

1920 and 1972, the Magistrate concluded that under Texas

practice, it is not necessary for the judge to pass an order

that the punishment be carried into execution and that

such may be done ministerially. Ex parte Woodruff, 483 SW

14

2d 951 (TXCVAP 72), Ex parte Coward, 222 SW 531

(TXSM 20). Plainly, unless they are distinguishable, those

authorities were overruled by the 1977 Supercinski case

being urged by petitioner.

The Magistrate overlooked the fact that the Texas

Court of Criminal Appeals is the state’s highest court of

appeal in criminal matters. The Texas Court of Civil

Appeals is an intermediate and inferior court. The Texas

Supreme Court is a co-ordinate court. While the State’s two

highest courts, out of comity, will ordinarily follow the

decisions of the other, they are under no compulsion to do

so. The case in bar, being within the actual and potential

jurisdiction of the Court of Criminal Appeals must be

governed by Supercinski regardless of what other Texas

courts may hold.

Petitioner thinks that the Texas cases can be reconciled

and fully briefed the matter to the District Court. However,

we view the discussion as digression. Unless petitioner’s

reliance upon Supercinski was plainly misplaced, unless

petitioner’s state law claims were completely frivolous, the

refusal by the Texas Court of Criminal Appeals to grant a

hearing thereon constituted the type of arbitrary action

forbidden by the Constitution. No amount of second guess-

ing by the Magistrate as to how the Texas Court of Criminal

Appeals might have decided this case upon its merits can

remedy the arbitrary refusal to grant a hearing by the only

court having jurisdiction to decide the matter.

We draw attention to another state claim, presented to

the Court of Criminal Appeals as Ground Two-A upon

which that Court likewise denied a hearing:

“The process issued by the District Clerk which

15

calls for relator to serve three days in jail and pay

$100.00 fine is void because the fine has already been

paid and relator has served out the term of the convic-

tion” (R. 6).

The habeas brief to the Court of Criminal Appeals devoted

four pages to this proposition (R. 41-44). On two occasions,

petitioner was placed in jail in satisfaction of the contempt

judgments at hand and on each occasion, he was held past

midnight (R. 23-24). Petitioner contended that under Texas

law, any part of a day spent in jail counts as an entire day

and that he thus has credit for four days spent in jail. He

further contended that the District Clerk had misapplied

his cash bail, had recorded the $100.00 fine as being paid

and had remitted the bail money in the County Road and

Bridge Fund (R. 25). Petitioner further contended that

under Texas law, the two judgments in question are con-

current convictions and thus, the three day conviction has

been completely served out and satisfied.

Again, the Texas Court of Criminal! Appeals turned a

deaf ear to the claim. Unless the claim was plainly frivolous,

the Court’s refusal of a hearing thereon was arbitrary and

unconstitutional.

The Magistrate ignored the affidavit that the bail had

been misapplied (R. 25) and likewise ignored the request

for an evidentiary hearing upon the question (R. 8). He

dismissed the remainder of the present state law claim by

ruling that petitioner “cannot establish prospectively that

he will not receive credit for time previously served”

(A.8). The ruling begs the issue entirely.

At the time petitioner was turned away by the Texas

Court of Criminal Appeals and also at the time the

16

Magistrate issued his ruling, respondent Sheriff was active-

ly seeking to place petitioner in jail pursuant to a writ

commanding respondent to imprison petitioner for three

days and thereafter until petitioner paid a fine of $100.00

(R. 17). If petitioner was correct upon his state law claim,

that writ was functus officio and void in its entirety.

Petitioner was there entitled not to be imprisoned at all

pursuant to the three day writ. Inasmuch as respondent

Sheriff was then and there attempting to execute that writ,

respondent was then and there entitled to challenge the

writ, regardless of whether or not the companion writ for

his imprisonment was valid. Moreover, the action of the

Court of Criminal Appeals in refusing to hear challenges

to the validity of either writ doubly placed petitioner in

jeopardy of being completely deprived of his liberty with-

out due process of law.

Please note how the Magistrate, in one breath, ruled

the present petition “premature” and in the next breath,

ruled it tardy by stating that the state law claims presently

being urged could have been presented to the Texas Court

of Criminal Appeals in 1972. The “premature” and the

“tardy” rulings are equally untenable.

How was petitioner able to anticipate the Supercinski

decision in 1972? Even further, how was he to anticipate

that in 1979, the District Clerk would issue process for his

imprisonment upon the thirty day convictions without the

entry of a judicial command that the adjudicated punish-

ment be carried into execution? In 1972, how could peti-

tioner have anticipated that in 1979, the District Clerk

would issue process for his imprisonment upon the three

day conviction after the term of imprisonment had been

fully served and the fine had been paid?

17

Even further, the Magistrate has misapplied the test.

The test is not which points “could” have been raised in the

previous writ, the test is “intentional by-passing.” Sanders

v. United States, 373 U.S. 1 (63) held that full consideration

of the merits of a successive application can be avoided

only if there has been an abuse of the writ and this, the

government has the burden of pleading and proving. See

also Advisory Comm. Notes foll. Rule 9, §2254 Rules, 28

USCA. Suffice to say that the State never satisfied its

burden of showing how the matters herein could reasonably

have been presented in a prior application.

Central to this entire argument is the question whether

there is a federally protected right to petition a state appel-

late court for habeas corpus on state law grounds. It is

submitted that such a right does exist. The history of the

Great Writ and its position as a bulwark against unjust

imprisonment was thoroughly explicated in Fay v. Noia, 372

U.S. 391 (63). The Texas Constitution, along with the

organic document of every other English speaking jurisdic-

tion, provides for the writ.

Petitioner’s problem lies in Art. 44.38, TXCCRP which

forbids more than one writ application with respect to the

same conviction. This, presumably, was the reason for the

summary rejection of the writ application under discussion;

because petitioner had already applied to the Court of

Criminal Appeals for habeas corpus in 1972.‘ It was neces-

sary that this petitioner invoke the habeas jurisdiction of

the Texas Court of Criminal Appeals in the first instance

4The previous opinion of the Court of Criminal Appeals described

those proceedings as an appeal. However, as pointed out in Ex parte

Waters, 499 SW2d 309 (TXCR 73) and again in Ex parte Supercinski,

supra, that proceedings in the Court of Criminal Appeals was, in

fact, an original habeas corpus proceedings.

18

because under Texas law, there is no right of appeal with

respect to contempt convictions. Arnold v. State, 493 SW2d

801 (TXCR 73), Ex parte Supercinski, supra. Thus, when

petitioner again sought habeas in 1979, Art. 44.38 constituted

a barrier preventing him from obtaining a hearing on his

state law claims.

Would Art. 44.38 pass constitutional muster if enacted

by Congress as a restriction upon the right of federal courts

to grant the writ? We think not. It is fundamental to federal

constitutional law that the writ is always available. As long

as the accused labors under the onus of his conviction, he

is entitled to ask that a federal court inquire as to the

justness thereof. The federal courts have refused to recog-

nize all but two restrictions upon the right to successively

petition for habeas relief. First, successive petitions may

not be merely repetitious. Secoiid, there may be no inten-

tional by-passing of available grounds, meaning that the

petitioner must exercise a reasonable effort to assert all

available grounds in his original petition. Fay v. Noia, supra,

Sanders v. United States, supra. Any congressional restric-

tion upon the power of federal courts to grant the Great

Writ comparable to Art. 44.38 simply would not be upheld.

We fail to see why a state created restriction upon the

power of state courts to grant the writ could rest upon a

more secure footing. The right of habeas corpus is equally

as fundamental as the right of jury trial. Placing heavy

reliance upon the widespread incidence of the right of jury

trial in Anglo-American jurisprudence, it was held in

Duncan v. Louisiana, 397 U.S. 145 (68) that no state may

deny the right of jury trial upon serious offenses. Likewise,

petitioner urges that no state may deny the right of habeas

corpus. Art. 44.38 absolutely denies the right of habeas

19

corpus in part because it denies a second petition no matter

how meritorious. Rules screening out petitions that are

patently without merit are not comparable.

Texas law has placed unreasoned restrictions upon the

right of habeas corpus. It cannot be argued that the federal

constitutional right of jury trial includes the right to have

one’s punishment fixed by a jury. However, this Court has

only recently held that wherever a state’s organic law so

provides, the right to have a jury fix one’s punishment may

not be judicially usurped. Hicks v. Oklahoma, 40 CCH SCT

B 3050 (June 16, 80). That decision was mandated by Vitek

v. Jones, 40 CCH SCT B 1495 (March 25, 80), Wolff v. Mc-

Donnell, 418 U.S. 539 (74) and Morrissey v. Brewer, 408

U.S. 471 (72).

We further urge that Art. 44.38 is particularly onerous

upon persons convicted of contempt because Texas refuses

appellate review of contempt convictions and the only

available right of review is by habeas. Had this petitioner

been accorded the right of appeal in the first instance, he

could again approach the Court of Criminal Appeals on

habeas. The non-availability of appeal in contempt cases

makes Art. 44.38 all the more discriminatory in the present

case.

The unreasonableness of Art. 44.38 is its monolithic

nature, absolutely prohibiting successive writs, regardless

of merit, thus raising the prospect that subsequent develop-

ments, particularly, as here, new Court constructions will

not be available to those who have previously applied for

the writ. Why should the Great Writ, that bulwark of

liberty, be granted to Supercinski and denied to this peti-

tioner? We can theoretically envision no policy considera-

tion which would uphold such result other than general

20

principles of judicial repose. But, considerations of judicial

repose have always been held subordinate to the writ of

habeas corpus. As the federal system has amply demon-

strated, there are other means, less restrictive upon liberty,

that can be employed to deal with abuse of the writ.

In Johnson v. Arizona, 462 F.2d 1352 (9-AZ 72), cited

by the Magistrate, it was held that the state must have a

rational basis for the grant or denial of retroactive effect

for its decisions. “Justice must be even handed.” The case

fully supports petitioner. No rational basis has been ad-

vanced for the grant of a writ to Supercinski and the denial

thereof to petitioner.

Griffin v. Illinois, 351 U.S. 12 (56) and the line of cases

emanating therefrom establishes that the avenues of appeal

must be kept free of unreasoned distinctions. Art. 44.38 is

such an unreasoned distinction and it must yield to constitu-

tional attack.

THREE

SENTENCING, BEING A CRITICAL STAGE, MAY NOT

CONSTITUTIONALLY BE OMITTED

The Magistrate brushed aside the present proposition

by repeating the well worn generality declaring that mere

procedural errors under state law are not of constitutional

significance. The proposition is only true if no federally

protected rights are involved. Obviously, neither the denial

of trial by jury nor the use of uncounseled pleas of guilty

for enhancement purposes may be dismissed as mere pro-

cedural errors. The Magistrate failed to recognize that with

respect to the thirty day conviction, no judge has ever

21

judicially entered a command that the adjudicated punish-

ment be carried into execution.

It is fundamental that only the judge of a court may

issue judgments and orders. The Clerk only fulfills the

ministerial function of issuing process to enforce the

court’s judgments and orders, previously rendered. Unless

that process be supported by a valid judgment it is a nullity.

In Texas, sentencing is governed by Arts. 42.02 et seq.

TXCCRP. We think the definition laid down by Art. 42.02

comports with the generally accepted notion of the sen-

tencing function:

“A sentence’ is the order of the court * * * made in

the presence of the defendant * * *, and entered of

record, pronouncing the judgment, and ordering the

same to be carried into execution in the manner pre-

scribed by law.”

At the time of sentencing, the court must determine

the amount of credit, if any due to the defendant for time

already spent in jail. Presently, the Clerk has undertaken

to make that determination and, as already shown, has

failed to give the proper credits. At the time of sentencing,

the court in its discretion may provide that the sentence

shall be served by the defendant during off-work hours or

on weekends. The trial judge may attach conditions regard-

ing the employment, travel and other conduct of the

defendant during the performance of such a released time

sentence. The court may condition a work-release program

upon assignment of earnings. The statute specifically makes

reference to contempt of court orders “for periodic pay-

ments for the support of a child.” All of the foregoing

matters are covered by Art. 42.03.

22

Before sentencing, Texas law requires that the defen-

dant must be asked if he has any reason why sentencing

should not be pronounced. Art. 42.07. At the time of sen-'

tencing, the court determines if a sentence shall be

cumulative or concurrent. Art. 42.08.

With regard to the judgment fixing punishment at

$100.00 fine and three days in jail for failure to “make full

disclosure” to Judge Walker, it is plain that Judge Holland

did pronounce sentence or enter commitment orders:

-“The Court hereby commits the said CHARLES

BEN HOWELL to the custody of the Sheriff of Dallas,

County, Texas until the fine and the term of imprison-

ment have been satisfied” (A.3).

Likewise, it is plain that petitioner was sentenced upon

the “civil” or “coercive” judgment of contempt:

“And the said CHARLES BEN HOWELL is hereby

committed to the custody of the Sheriff of Dallas

County to be confined in the Dallas County Jail until

such time as he shall purge himself by revealing the

names of the said four attorneys” (A.2).

The Fifth Circuit has relieved petitioner from coercive

confinement. Petitioner may no longer be confined “until

such time as he shall purge himself.”

The remaining judgment, written in the same docu-

ment as the coercive judgment only states:

“And the Court further sets his punishment at a

fine of $500.00 and confinement in the County Jail for

_a period of thirty days” (A.2).

With respect to this thirty day conviction, petitioner

has never been brought before the Judge for sentencing,

23

sentence has never been pronounced, and no judicial order

or commitment in writing has ever been rendered. While the

Magistrate’s report equivocates upon the matter, the facts

are plain. Instead, the District Clerk of Dallas County,

Texas, has presumed to draw up process directing respon-

dent Sheriff to seize petitioner and place him in jail, but

there has been no judicial command for such action.

Petitioner submits that imprisonment without a

judicial commitment order and without formal sentencing

is violative of due process. In addition, petitioner has been

deprived of equal protection because those procedures are

clearly mandated by the Texas statute.

Sentencing is a “critical phase” of the criminal process

entitling the defendant to be present and to be represented

by counsel. Townsend v. Burke, 334 U.S. 736 (48), Mempha

v. Rhay, 389 U.S. 128 (67), Argersinger v. Hamlin, 407 U.S.

25 (72), United States v. Huff, 512 F.2d 66 (5-GA 75), Turn-

bow v. Estelle, 510 F.2d 127 (5-TX 75), Ball v. United States,

140 U.S. 118 (1891). The time of sentencing is the defen-

dant’s last chance before imprisonment to urge insuf-

ficiencies in the evidence or the proceedings. The formal

sentencing is the proper time to argue for constitutionally

guaranteed credits for time previously served. North Caro-

lina v. Pearce, 395 U.S. 711, 718, 719 (69). Specifically with

respect to contempt cases, denial of a sentencing hearing

effectively denies the right of allocution, a constitutionally

guaranteed right. Groppi v. Leslie, 404 U.S. 496 (72).

It is possible that the Magistrate did not distinguish

between the adjudication phase and the sentencing phase

of a criminal action. The two have always been considered

separate just as the determination of guilt has always been

considered as yet another entirely separate phase of the

24

criminal action. In Texas and numerous other states, the

punishment is fixed by the jury. However, sentencing is

universally a function of the trial court judge.

Even though Judge Holland entered a determination of

guilt and set the punishment at thirty days plus $500.v0,

it is clear that he deferred the third phase of sentencing.

Does this mean that the third phase may be performed

ministerially? The case of Turnbow v. Estelle, 510 F.2d 127

(5-TX 75) is to the contrary. Held, even though the punish-

ment has been fixed at a previous hearing, the sentencing

function remains a critical stage of the criminal process

entitling the defendant to assistance of counsel. See also

United States v. Huff, supra.

If a defendant is entitled to be represented by counsel

at the time of sentencing, it necessarily follows that it is a

due process requirement that such sentencing (i.e. the entry

of a command that the adjudicated punishment be carried

into execution coupled with any lawful or proper directions

as to the terms and conditions of confinement) must be

judicially performed and that the same can neither be

delegated to the clerk, a ministerial officer, nor may the

same be dispensed with entirely.

Neither Judge Holland nor any other Judge, while

specifically addressing himself to the 30 day conviction has

judicially declared, (1) in open court, (2) in the presence

of petitioner, (3) having previously afforded to him the

right to there be represented by counsel; that the judgment

having become final and the defendant having been allowed

to state why sentence should not then be pronounced and

the defendant having offered no sufficient reason for delay

in sentencing; that it was the order of the Court that the

25

judgment be carried into execution in the manner pre-

scribed by law and that this petitioner be placed in jail for

a period of thirty days and thereafter until his fine in the

amount of $500.00 be paid. To the contrary, all of these

judicial functions have been abandoned to or assumed by

a ministerial officer, the District Clerk acting ex parte —

a clear denial of Due Process of Law and Equal Protection

of the Law.

FOUR

ATTACK UPON THE THREE DAY PROCESS WAS NOT

PREMATURE

Petitioner’s claims with respect to the writ or process

issued by the District Clerk directing respondent Sheriff to

place petitioner in jail for three days and until the payment

of a $100.00 fine have been discussed in connection with

questions one and two. Petitioner contends that he has

already served out the sentence and has paid the fine. We

can think of no more obvious deprivation of due process

than to imprison a defendant again after his sentence has

already been completed. Anyone who would argue the

contrary simply has no understanding of the concept of

Due Process of Law as that concept has been forged by

generations of constitutional interpretation.

Of course, the Magistrate did not argue with petition-

er’s basic premise. Instead, he brushed it off with a declara-

tion that it was “premature” (A.8). If I am being actively

hunted by someone with a gun in his hand, is it premature

to complain to the authorities that I am about to be shot?

Similarly, when this petitioner filed his federal habeas

petition, respondent Sheriff was actively seeking to place

26

petitioner in jail pursuant to the three day writ. If peti-

tioner’s contentions be correct, that writ is wholly void. To |

hold that petitioner “cannot establish prospectively that he

will not receive credit for time previously served” is to

ignore reality. Petitioner has a present right not to be

imprisoned at all pursuant to a judgment that has wholly

been satisfied.

It was once the law that the writ was not available

unless it could potentially lead to the petitioner’s immediate

discharge. Thus, he could not attack only one of two con-

current sentences nor could he attack a consecutive

sentence until he had commenced serving the particular

sentence. McNally v. Hill, 293 U.S. 131 (34). This rule was

expressly overthrown in a line of cases beginning with

Peyton v. Rowe, 391 U.S. 54 (68). A prisoner serving con-

current sentences may attack one of those sentences be-

cause, as a practical matter, to have one of them set aside

would enhance his chances of early release and relieve him

from the stigma of a dual conviction. For similar reasons, a

consecutive sentence to be served in the future may be

immediately attacked with the writ of habeas corpus. In

Braden v. Court, 410 U.S. 484 (73), it was held that a de-

tainer, being no more than a request from another jurisdic-

tion that the prisoner be turned over to the other

jurisdiction to answer to an alleged offense in the second

jurisdiction could be attacked by habeas.

The “prematurity” ruling was plainly wrong. Petitioner

was entitled to an immediate determination of the validity

of the three day process simply because the respondent

Sheriff was attempting to immediately incarcerate him

pursuant thereto.

27

FIVE

A CERTIFICATE OF PROBABLE CAUSE SHOULD HAVE BEEN

ISSUED

The Supreme Court has never written upon the test to

be applied in granting or denying a certificate of probable

cause. In Smith v. Digmon, 434 U.S. 332 (78), the Supreme

Court summarily reversed the denial of the certificate.

Similarly, there is ample basis for summary reversal in the

present case. The case may be returned to the Court of

Appeals or the District Court because the District Court

has never intelligibly complied with R.22(b) FRAP requir-

ing the District Judge to “state the reasons why such a

certificate should not issue.”

Obviously, the certificate should be denied where the

petitioner has restricted himself to claims under state law

and has failed to invoke the Constitution and laws of the

United States. As elementary as the principle seems, we

are informed that numerous prisoner petitions possess this

shortcoming. Likewise, the certificate should be denied

with respect to successive petitions that are plainly repeti-

tious or where the petitioner is clearly guilty of Intentional

withholding. Beyond these rather obvious categories,

petitioner submits that the certificate may not be denied

unless the petition be “completely frivolous and wholly

without substance.”

This is a successive petition, but it has not been intimat-

ed in any way that it is repetitious. The Magistrate did state

that the claims could have been raised in 1972, but at no

stage of the proceedings did he hold petitioner to be guilty

of intentional by-passing which is the only relevant ground

for denying a successive writ. As stated more fully under

28

questions one and two, petitioner could not have raised the

present claims in 1972 unless possessed of a high degree of

occult omniscience. We would finally point out that the

Magistrate did not assign intentional by-passing as a

grounds for denying the certificate of probable cause.

As noted in “Fact Statement — Present Appeal,” the

Magistrate did not recommend the denial of the certificate

at all in his original report. Contrariwise, we read the last

paragraph thereof as some indication that the Magistrate

then considered that an appeal should be allowed.’ The

denial of probable cause originated with the District

Judge’s order of October 17 (A.12). That order did not

comply with R.22(b) FRAP because it did not set out the

“reasons” for denial except to refer to the Magistrate’s

report wherein the problem simply was not addressed. Two

months later, the District Court having already spoken, the

Magistrate obediently filled out a mimeographed form

recommending that the Court do what it had already done;

deny probable cause. At that time, the Magistrate returned

a seven word determination which stripped of verbiage

states:

“Petitioner’s claims arise under Texas State law

ee” (A.12).

The finding demonstrably fails to square either with

the petition on file in the District Court or the prior recom-

mendation of the Magistrate himself.

Possibly, the Magistrate failed to take notice of the

5It is to be noted that Magistrate Sanderson had only recently come

to his position. In his previous position as Assistant United States

Attorney, he did not deal with state prisoners and the requirement

for a certificate of probable cause.

rule that federal question jurisdiction is to be determined

solely from an examination of the petition.

“It cannot be doubted therefore that it was the

pleaders’ purpose to make violation of the constitu-

tional provisions the basis of this suit. Before deciding

that there is no jurisdiction, the District Court must

look to the way the complaint is drawn to see if it is

drawn so as to claim a right to recover under the

Constitution and laws of the United States. For to that

extent, ‘the party who brings a suit is master to decide

what law he will rely upon and .. . . does determine

whether he will bring a “suit arising under” the... .

(Constitution or laws) of the United States by his

declaration or bill.’”” Bell v. Hood, 327 U.S. 678 (46).

It is well established that petitions for the Great Writ

are to be most liberally construed in favor of the right of

human freedom. Fay v. Noia, 372 U.S. 391 (63). Viewed in

this light, it cannot be doubted that petitioner was attempt-

ing to set forth claims under the Constitution and laws of

the United States. The Magistrate’s recommendation cannot

stand upon the grounds suggested.

The Magistrate’s January 3 recommendation that

probable cause be denied is prefaced “As set out in the

Findings, Conclusions and Recommendation * * * hereto-

fore filed * * *.” However, there is absolutely no statement

or inference to be gleaned from the original recommenda-

tion dated September 18 to the effect that petitioner has

failed to invoke the Constitution and laws of the United

States. To the contrary, the original recommendation is

sprinkled with the terms “due process,” “equal protection,”

“Federal constitutional violation,” “constitutional dimen-

sions,” “Federal relief,’ “Federal violation,’ “Federal

30

rights” and the like. Several federal authorities are cited.

There is an obvious non sequitur between the original

recommendation and the recommendation to deny certifi-

cate of probable cause on grounds that petitioner has not

invoked the Constitution and laws of the United States.

Manifestly, petitioner has done so. On September 18, the

Magistrate assumed that petitioner had done so. His

January 3 recommendation does not square with his pre-

vious findings. Nor can petitioners federal claims be

labeled “completely frivolous and wholly without sub-

stance.” The Magistrate returned no such finding on

September 18. Neither did he make any such finding on

January 3. It would further appear that Judge Higgin-

bottom was of the opinion that the petition contained

meritorious grounds or he would not have admitted peti-

tioner to bail. Further, respondent filed an answer (R. 60),

something which the State is not required to do without

an express order, R.4 fol. 28 USC §2254, a step which is

rarely taken by state’s attorneys when they view the

petition as baseless. The fact that the state answered at all

operates as a silent concession that the state views the

petition to possess some merit.

Considering the fact that a certificate is needed by all

state prisoners, very little has been written in the Fifth

Circuit, or elsewhere concerning the proper test to be

applied in ruling upon an application for certificate of

probable cause. The test enunciated by the Ninth Circuit in

6The District Court signed the Magistrate’s January 3 mimeograph

but he failed to complete the blank wherein he was supposed to

state his ‘‘reasons.’’ To assume that he was adopting the Magistrate’s

recommendation after ‘‘independent’’ review of the record consti-

tutes a complete and final abandonment of Wingo v. Wedding, 418

U.S. 461 (74).

31

Blair v. California, 340 F.2d 741 (9-CA 65) has been most

widely applied. Commenting on Blair, Professor Sokol

states:

“There is a vast difference between a weak case,

even a very weak case, and a frivolous one. In this

regard the test employed by the Ninth Circuit is a good

one, ‘it is frivolous only if the applicant can make no

rational argument on the law or facts in support of his

claim for relief.’ Blair v. California, 340 F.2d 741 (9th

Cir. 1965). It may well be that there are arguments

that can be made on behalf of the petitioner that are

well beyond the law’s existing frontier but well within

the frontier of rationality. Only when the frontier of

the latter is passed does the case become frivolous.”

Sokol, Fed. Habeas, 196 (69).

The test as above stated has been applied in the Fifth

Circuit, Dillingham v. Wainwright, 422 FS 259 (SDFL 76),

affd. 555 F.2d 1389 (4-FL 77) where the court stated that

the petitioner’s claim was “ ‘very weak,’ ” but nonetheless,

“a rational argument on the law” and therefore allowed the

appeal. Accord: Capetta v. Wainwright, 286 FS 404 (SDFL

68). The present case easily fits the test laid down in those

cases. It follows that the certificate should have been

granted.

In asking for a certificate of probable cause, petitioner

was not asking the Court to decide the case in his favor.

Petitioner was only asking leave to be heard. The require-

ment for certificate of probable cause is only for the purpose

of winnowing out those cases which are patently without

merit. The right of appeal is of constitutional dimension.

Rinaldi v. Yeager, 384 U.S. 305 (66). The statutory require-

32

ment for certificate of probable cause was not designed to

impinge upon that right.

Manifestly, the proper test has not been applied. The

action is not entirely wanting in merit and because it

cannot be so labeled, a certificate should have been granted.

Conclusion

For the reasons given, a writ of certiorari sould issue

to review the judgment of the Fifth Circuit.

Respectfully submitted,

Tom S. McCorkie

500 Katy Building

701 Commerce Street

Dallas, Texas 75202

(214) 742-1411

Attorney for Petitioner

A-l

Supreme Court Of The United States

OCTOBER TERM, 1980

NO. 80

De ee weeenesauepes Petitioner

Vv.

CarL THOMAS, SHERIFF,

ee Respondent

PETITIONER'S. APPENDIX

Proceedings In State Trial Courts

DOMESTIC RELATIONS COURT 2, DALLAS COUNTY,

TEXAS; MARRIAGE OF NORMAN & EDNA RALSTON;

NO. 71-8259-DR/2

JUDGMENT OF CONTEMPT

[Filed July 27, 1972]

ON THIS the 27th day of July, 1972, came on for trial

the above-styled and numbered cause; and the said

CHARLES BEN HOWELL, a witness in the said cause,

testified that he had requested four attorneys to represent

him, all without avail; and the said CHARLES BEN

HOWELL being asked upon cross-examination to name

A-2

those four attorneys, refused to do so; and the Court having

ordered said CHARLES BEN HOWELL to answer the said

question and reveal the said attorneys’ names or to be

found in contempt of court, continued to refuse to answer

and does at this time refuse to answer the said question;

IT IS THEREFORE ORDERED AND ADJUDGED

that the said CHARLES BEN HOWELL is in direct con-

tempt of this court and the said CHARLES BEN HOWELL

is hereby committed to the custody of the Sheriff of Dallas

County to be confined in the Dallas County Jail until such

time as he shall purge himself by revealing the names of

the said four attorneys; and the Court further finds

CHARLES BEN HOWELL in contempt of this court and

sets his punishment at a fine of $500.00 and confinement in

the County Jail for a period of thirty days.

/s/ Louis T. Holland

JUDGE

Judge Retired Judge Judicial District

Court Sitting For Judge Domestic Relations

Court No. 2 of Dallas County, Texas

[R. 20]

162ND DISTRICT COURT, DALLAS COUNTY, TEXAS;

DEE BROWN WALKER VS. CHARLES BEN HOWELL;

NO. 71-8259-DR/2

JUDGMENT OF CONTEMPT

[Filed July 28, 1972]

ON THIS the 27th day of July, 1972 came on for trial

the above styled and numbered cause; and the Court having

heard the evidence, finds that CHARLES BEN HOWELL

A-3

is guilty of contempt of the Court committed on the 26th

day of May, 1971; the said CHARLES BEN HOWELL failed

to make full disclosure as to all of the facts surrounding the

matters before the Court after the Court had directly

inquired of the said CHARLES BEN HOWELL, as to all

of the said matters;

THEREFORE, IT IS ORDERED AND ADJUDGED

that the said CHARLES BEN HOWELL is guilty of con-

tempt of Court, and the Court sentences him to pay a fine

of $100.00 and commitment in the County Jail for a period

of three days, and the Court hereby commits the said

CHARLES BEN HOWELL to the custody of the Sheriff of

Dallas County, Texas, until the fine and the term of

imprisonment have been satisfied.

/s/ Louis T. Holland

JUDGE

JUDGE Retired Sitting for Judge

Domestic Relations Court No. 2 of

Dallas County, Texas

[R. 18]

Proceedings In Texas Court of Criminal Appeals

TX.CT.CRIM.APP.; Ex parte CHARLES BEN HOWELL;

NO. 8,194

MOTION FOR LEAVE TO FILE ORIGINAL

APPLICATION FOR HABEAS CORPUS

[Filed June 25, 1979]

[Text Omitted]

[Handwritten notation thereon: ]

6-25-79

A-4

Motion for leave to file original application for writ of

habeas corpus denied.

/s/ John F. Onion, Jr.

Presiding Judge

Clinton J. not participating

[R. 12]

Proceedings In U.S. District Court

U.S.DIST.CT., N.D.TX., DALLAS DIV., CHARLES BEN

HOWELL V. CARL THOMAS, SHERIFF; CA 3-79-0825-D.

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE

[Filed Sept. 18, 1979]

Pursuant to the provisions of 28 U.S.C. 636(b), and an

Order of the Court in implementation thereof, the subject

cause has previously been referred to the United States

Magistrate. The findings, conclusions and recommendation

of the Magistrate, as evidenced by his signature thereto,

are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: This is a petition for Writ of Habeas

Corpus relief filed pursuant to 28 U.S.C. §2241, et seq.

Parties: Petitioner, Charles Ben Howell, is subject to

commitment pursuant to judgments of contempt heretofore

entered by a State District Court of Dallas County, Texas.

Respondent is the Sheriff of Dallas County, Texas, and has

constructive custody of the Petitioner.

Statement of the Case: The operative facts on which

A-5

the present judgments of contempt are predicated are set

out in the Court of Criminal Appeals’ opinion affirming

the contempt judgments against Petitioner in Ex Parte

Charles Ben Howell, 488 SW2d 123 (Tx. Ct. of Crim. App.

1972) appeal dismissed for want of substantial Federal

question, 414 U.S. 803 (1973).

Petitioner has previously sought Federal habeas

corpus relief in this Court, and Petitioner’s prior applica-

tion was denied. The District Court’s denial of relief was

affirmed by the Fifth Circuit in Howell v. Jones, 516 F.2d

53 (5th Cir. 1975) reh. en banc den. 521 F.2d 815; cert. den.

424 U.S. 916 reh. den. 425 U.S. 945.

In support of his present application Petitioner alleges

the following grounds for relief:

1. The District Clerk of Dallas County, without notice

and without the benefit of any order of a judge authorized

to preside in contempt proceedings issued process directing

the Petitioner to be placed in jail pursuant to the sentences

imposed in the presiding judge’s judgments of contempt.

Petitioner alleges that he was not present when sentence

was imposed. In addition, he contends that the action of

the District Clerk constituted a denial of equal protection.

2. Petitioner alleges that he has not been given credit

for partial payment of the fine imposed and has not been

given credit for time served on the sentence of incarcera-

tion. The attempt to enforce the contempt judgments

previously entered against the Petitioner without an addi-

tional order from the presiding judge of the court in which

the contempt occurred violates due process and equal

protection rights of the Petitioner.

3. Petitioner alleges that the absence of an order of

A-6

commitment entered by the judge who entered the

judgments of contempt or by the incumbent judge deprives

the Petitioner of remission of the penalties imposed.

4. The refusal of Petitioner’s motion for leave to file

a Writ of Habeas Corpus by the Texas Court of Criminal

Appeals and the practice of the Texas Court of Criminal

Appeals requiring that leave be granted before a Writ of

Habeas Corpus can be filed violates Petitioner’s due process

rights.

In his answer Respondent does not contest the fact

that Petitioner has exhausted available state remedies.

Accordingly Petitioner’s application is before this Court for

a ruling on the merits.

Findings and Conclusions: As to Petitioner’s first

ground for relief, it is observed that his statement in his

application that “the Fifth Circuit held that the judicial

order of commitment was no longer enforceable” is an

incorrect statement of the holding of the Fifth Circuit. The

opinion of the Fifth Circuit stated:

“In addition to the two criminal contempt convic-

tions, Howell was ordered to ‘be confined in the

Dallas County Jail until such time as he shall

purge himself by revealing the names of the said

four attorneys.’ The contempt proceedings have

terminated, Howell cannot be confined under this

order since he has no further opportunity to purge

himself of contempt.” Howell v. Jones, supra, at

page 56.

From the language quoted above and the resolution of

Petitioner’s appeal from the District Court’s order denying

the Writ of Habeas Corpus in the above case, it is clear that

A-7

the Fifth Circuit held oniy that the civil aspects, i.e., com-

mitment until the contempt was purged was nullified

because the contempt proceedings themselves had termi-

nated. The Fifth Circuit did not purport to set aside or

modify in any respect the penalties imposed occasioned by

the Petitioner’s contumacious conduct.

Apparently Petitioner claims that under State law he

is entitled to another sentencing hearing before the judge

that entered the contempt judgment or his successor.

Petitioner does not contend that he was not present when

the original judgments of contempt were entered.

Respondent in his answer observes that under Texas

State law no further orders are required to be entered by

the trial court prior to execution of the judgment. Ex Parte

Woodruff, 483 SW2d 951 (Tx.Civ.App. Texarkana 1972);

Ex Parte Coward, 222 SW 531 (Tx. 1920).

Even if it be assumed that Texas procedural law con-

templates a further “sentencing proceeding”, no Federal

constitutional violation has been demonstrated. A violation

of State procedural law is insufficient to state a ground for

Federal habeas corpus relief. Van Povck v. Wainwright, 595

F.2d 1083 (5th Cir. 1979); Bell v. Estelle, 525 F.2d 656, 657

(5th Cir. 1970); cf. Nichols v. Estelle, 556 F.2d 1330 (5th

Cir. 1977).

The contempt hearing and the announcement and entry

of the presiding court’s judgments satisfies “due process”

requirements under the United States Constitution, and

the sentencing procedures utilized by the State courts are

not matters of constitutional dimensions. Johnson v. State

of Arizona, 462 F.2d 1352 (9th Cir. 1972). Accordingly,

A-8

Petitioner’s first ground for relief is without merit and

should be denied.

In Petitioner’s second ground he reiterates the fact

that the District Clerk has issued process without further

order of a court. He cites no authority for the proposition

that this is in violation of Federal constitutional rights. As

part of his second ground he also alleges that he has not been

given credit for payment of a portion of the fine imposed

and that he has not been given credit for partial service of

the jail sentence.

The Respondent has attached a receipt issued to

Patricia Howell which reflects that the sum of $100.00 was

delivered to the Sheriff of Dallas County. This receipt on

its face demonstrates that the $100.00 was not in partial

payment of the monetary fine, but rather was a bond to

insure the appearance of the Petitioner in the contempt of —

court action.

The length of confinement is prematurely raised in the

present application particularly in light of the fact that

Petitioner has not submitted to any incarceration and

cannot establish prospectively that he will not receive

credit for time previously served. Accordingly, Petitioner’s

second ground for relief is without merit.

Petitioner’s third ground for relief is a variation of his

first ground. In the third ground Petitioner claims that

only the incumbent judge is authorized to commit the

Petitioner under the previously entered judgments of

contempt. He further alleges that the incumbent judge at

the time of the filing of his application in the present cause

has declined to execute an order of commitment. Petitioner

is apparently troubled by the fact that he believes under

A-9

Texas State law only the incumbent judge or the presiding

judge is empowered to reduce or commute his sentence.

The Respondent in his answer observes that to the contrary

the Petitioner can seek remission from any other District

Court judge of Dallas County, Texas. See Article 199a,

§2.002, Texas Civil Statutes.

The matters of which Petitioner complains in his third

ground are matters of State law, and do not arise to “due

process” dimensions. No basis for Federal relief is demon-

strated. No constitutionl right of the Petitioner has been

violated and Petitioner’s third ground for relief should be

denied.

In his fourth ground for relief Petitioner contends that

he has been denied due process of law by reason of the

Texas Court of Criminal Appeals’s refusal to grant him

leave to file his application for habeas corpus in that court.

Petitioner cites no authority for the proposition that

a habeas court is required to consider every application for

Writ of Habeas Corpus on its merits. This Court is unable

to find any Federal violation occasioned by the Texas Court

of Criminal Appeals’s refusal to accept Petitioner’s applica-

tion for Writ of Habeas Corpus, especially in light of the

fact that that court has previously carefully considered the

validity of the judgments of contempt in its prior opinion.

Ex Parte Howell, supra.

Moreover, the habeas corpus powers granted to Federal

courts provide sufficiently broad prophylactic procedures

to insure that a State petitioner’s Federal rights are pro-

tected. Petitioner’s fourth ground for relief is without merit

and should be denied.

A-10

RECOMMENDATION:

For the foregoing reasons it is recommended that

Petitioner’s application for Writ of Habeas Corpus be

denied and dismissed. It is further recommended that the

stay of execution effected by the District Court’s order

admitting the Petitioner to bail on June 27, 1979, be

dissolved and set aside.

It is further recommended that the judgment entered

by the District Court dismissing Petitioner’s application be

stayed for a period of twenty days from the date of said

judgment in order to permit Petitioner to seek appellate

review.

[R. 73-78]

ORDER [ADOPTING MAGISTRATE’S FINDINGS]

[Caption as immediately foregoing; filed Oct. 10, 1979]

After making an independent review of the pleadings,

files and records in this case, and the findings, conclusions

and recommendation of the United States Magistrate, and

after considering Petitioner’s Objections to Findings,

Conclusions and Recommendation of the United States

Magistrate, I am of the opinion that the findings and con-

clusions of the Magistrate are correct and they are adopted

as the findings and conclusions of the Court.

IT IS, THEREFORE, ORDERED that the Findings,

Conclusions and Recommendation of the United States

Magistrate are adopted.

IT IS FURTHER ORDERED that Order of this Court

admitting Petitioner to Bail is vacated ten (10) days from

the file date of this Order.

A-11

SIGNED AND ENTERED this 10th day of October,

1979.

[R. 96]

JUDGMENT

[Caption as immediately foregoing; filed Oct. 10, 1979]

This action came on for consideration by the Court, and

the issues having been duly considered and a decision duly

rendered,

It is ORDERED, ADJUDGED AND DECREED that

the Petitioner’s application be, and it is hereby, refused and

dismissed.

IT IS FURTHER ORDERED that the Clerk shall trans-

mit a true copy of this order, together with a true copy of

the Findings, Conclusions and Recommendation of the

United States Magistrate and the Order adopting the Find-

ings, Conclusions and Recommendation of the United States

Magistrate to Petitioner and Respondent.

SIGNED AND ENTERED this 10th day of October,

1979.

[R. 97]

ORDER

[Caption as immediately foregoing; filed Oct. 18, 1979]

The petitioner’s motion for certificate of probable

cause together with a request for an order extending

petitioner’s bail came on for consideration before the court,

the Honorable Robert M. Hill, United States District Judge.

The court has considered the motion and is of the opinion

A-12

that petitioner’s motion for certificate of probable cause

pursuant to 28 U.S.C. §2253 for appeal to the court of

appeals should be denied because of the reasons set out in

the Findings, Conclusions and Recommendation of the

United States Magistrate adopted by this court on October

10, 1979.

The court is also of the opinion that petitioner’s motion

for bail pending appeal should be denied.

It is so ORDERED.

Dated this 17th day of October, 1979.

[R. 100]

[RECOMMENDATION AND ORDER THEREON —

One page form]

[Caption as immediately foregoing; filed Jan. 4, 1980]

A notice of appeal has been filed in the subject pro-

ceeding. Pursuant to the provisions of Rule 22(b), Federal

Rules of Appellate Procedure, I recommend that a certifi-

cate of probable cause be denied. Recommendation of

denial, if made, is based on the following reasons:

As set out in the Findings, Conclusions and

Recommendation of the Magistrate heretofore filed

in the above styled and numbered action, Petition-

er’s claims arise under Texas State law, and such

grounds fail to state violations cognizable under

the Constitution of the United States.

ORDER OF THE COURT ON THE FOREGOING

RECOMMENDATION:

After a review of the files and records of the case and

A-13

the recommendation of the Magistrate, I find that a

certificate of probate of probable cause should be denied.

IT IS SO ORDERED. The reasons for denial of a certificate

of probable cause, if such is denied, are as follows:

[Petitioner’s Note: Remainder of form is blank]

[R. 108]

Proceedings In The Fifth Circuit

U.S. COURT OF APPEALS, FIFTH CIRCUIT: CHARLES

BEN HOWELL V. CARL THOMAS, SHERIFF; NO.80-8048

ORDER

[Filed March 17, 1980]

REAVLEY, Circuit Judge:

IT IS ORDERED that petitioner’s application for

certificate of probable cause is denied.

ORDER

[Caption as immediately foregoing; filed April 14, 1980]

Before Godbold, Reavley and Anderson, Circuit Judges

BY THE COURT:

A member of this panel has heretofore denied petition-

er’s application for a certificate of probable cause. Upon

consideration by this panel upon request of petitioner, IT

IS ORDERED that petitioner’s application for certificate of

probable cause is denied.

A-14

DALLAS TIMES HERALD. Thursday, July 15, (376

so0eC—5

Jury may get

disbarment case

today

By PAUL WEST

Staff Writer

The disbarment trial of Republican

judielal candidate Charles Ben Howell

was expected to go to the jury today

following final arguments by both sides

in Uist District Court here.

In testimony Wednesday, Howell was

labelled ‘‘a sick man” by District Judge

Dee Brown Walker, his opponent in the

November general election race for the

162nd District Court bench.

Howell, 51, of Dallas, is accused of

professional misconduct by the State Bar

of Texas in connection with a I97] case

in which he allegedly failed to disclose

all facts of a divorce action to Walker

when he asked him to award custody of

children to his client.

The state bar rested its case

Wednesday afternoon following an ap-

pearance by Walker, who filed the

original disbarment complaint against

Howell in 1972.

Walker disputed Howell's testimony

that he informed the judge of another

Charles Ben Howell .. .

«+.» Nears end of trial

pending case involving his client whea

he sought a ruling from Walker in May

1971.

“He did not,” Walker said bluntly,

when questioned about Howell's actions

by state bar attorney Stan McMurry of

Dallas.

Howell testified Tuesday he informed

Walker of the existence of the other suit

‘put didn't provide details ‘‘because

Judge Walker didn’t ask.”

But Walker contended Howell had a

duty as a lawyer to provide the

information without being asked.

“Part of the judicial system is the

responsibility on the lawyer to be candid

and open to a judge,” Walker testified.

“And they have just as much responsi-

bility to see that justice is done as |

do.”

Walker said he considered Howell “a

sick man” and that “many members of

the bar and bench” agreed with him.

“Practically all of them (Dallas

lawyers and judges) think something's

wrong with him,” testified Walker.

“Mentally wrong?” asked McMurry.

“Yes, sir,” replied the judge.

Walker named Dallas attorneys Wil-

liam Pritchard and Larry Anderson and

Dist. Judges Ted Robertson, Hugh

Snodgrass and Fred Harless among

those who agreed with his assessment of

Howell.

“I don’t think he ought to havea

(law) license,” concluded Walker.

Walker, who has served 13 years on

the county district bench, acknowleged

under cross examination that if Howell

is disbarred it will disqualify him from

the November election race.

A-15

Howell, a four-time loser in county

judgeship contests, faces reprimand,

suspension or revocation of his legal

license if the jury rules against him.

In testimony Wednesday Howell flatly

denied violating professional ethics in

his handling of the divorce case.

Aske? by defense attorney Waggoner

Carr, former Texas attorney general, if

he had behaved fraudulently or broken

the professional ethics code in handling

the divorce action, Howell replied, “No,

sir.”

The defense said it hoped to call

several character witnesses on Howell's

behalf when the trial resumed at 9 a.m.

this morning, but a series of rulings by

presiding Judge Frank Wear of Paris

cast doubt they would be allowed to

testifiy.

Wear said he did not think character

witnesses were allawed to testify in civil

cases and asked lawyers for both sides

to present arguments on the question

when court convenes this morning.

The jury will decide the case’ but

Wear must set the penalty, if the jury

rules against Howell.

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