Eugene F. Earin v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

Eugene F. Earin v. Dr. George J. Beto, Director, Texas Department of Corrections

453 F.2d 376

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 31, 1972

Docket71-2824

StatusPublished

Cited by13 cases

This text of 453 F.2d 376 (Eugene F. Earin v. Dr. George J. Beto, Director, Texas Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eugene F. Earin v. Dr. George J. Beto, Director, Texas Department of Corrections, 453 F.2d 376 (5th Cir. 1972).

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Opinion

PER CURIAM.

This appeal is taken from an order of the district court denying the habeas corpus petition of a Texas state prisoner. We affirm. 1

Appellant was convicted on his plea of guilty to a charge of assault with intent to rape. The statute under which he was convicted, Article 1162, Vernon’s Ann. Texas Penal Code, provides for a sentence of any term of years not less than two but specifies no maximum term of imprisonment. Appellant was sentenced to 40 years imprisonment.

Appellant’s habeas corpus petition asserted three grounds for relief: (i) that appellant’s guilty plea was made in fear of the death penalty; (ii) that the penalty provision of Article 1162 is unconstitutional for failing to specify a maximum sentence; (iii) and that the penalty provision allows a judge to discriminate against Negro defendants by assessing them greater sentences than white violators.

A guilty plea resulting from the desire to avoid the possibility of the death penalty is not invalid. North Carolina v. Alford, 1970, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162; Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Jenkins v. Beto, 5 Cir., 1971, 442 F.2d 655; Pickens v. United States, 5 Cir., 1970, 427 F.2d 349. Nor is a sentencing statute unconstitutional because it does not provide a maximum sentence. Binkley v. Hunter, 10 Cir., 1948, 170 F.2d 848, cert, den., 336 U.S. 926, 69 S.Ct. 645, 93 L.Ed. 1087; Ex parte Davis, Tex.Cr.App., 1967, 412 S.W.2d 46; Brown v. State, 1961, 171 Tex.Cr.R. 167, 346 S.W.2d 842. Cf. Ruiz v. United States, 3 Cir., 1966, 365 F.2d 500.

Similarly without merit is appellant’s contention that the sentencing statute would facilitate racial classification through the choice of the sentencing court and thus denies equal protection of the laws. Appellant has alleged no facts to support such a claim. Thus this claim is defeated by long established law that differing sentences within the maximum provided by statute for persons convicted of the same crime do not offend the Constitution. Howard v. Fleming, 1903, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121; Overstreet v. United States, 5 Cir., 1957, 367 F.2d 83.

Affirmed.

1

. It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981.

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PER CURIAM.

This appeal is taken from an order of the district court denying the habeas corpus petition of a Texas state prisoner. We affirm. 1

Appellant was convicted on his plea of guilty to a charge of assault with intent to rape. The statute under which he was convicted, Article 1162, Vernon’s Ann. Texas Penal Code, provides for a sentence of any term of years not less than two but specifies no maximum term of imprisonment. Appellant was sentenced to 40 years imprisonment.

Appellant’s habeas corpus petition asserted three grounds for relief: (i) that appellant’s guilty plea was made in fear of the death penalty; (ii) that the penalty provision of Article 1162 is unconstitutional for failing to specify a maximum sentence; (iii) and that the penalty provision allows a judge to discriminate against Negro defendants by assessing them greater sentences than white violators.

A guilty plea resulting from the desire to avoid the possibility of the death penalty is not invalid. North Carolina v. Alford, 1970, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162; Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Jenkins v. Beto, 5 Cir., 1971, 442 F.2d 655; Pickens v. United States, 5 Cir., 1970, 427 F.2d 349. Nor is a sentencing statute unconstitutional because it does not provide a maximum sentence. Binkley v. Hunter, 10 Cir., 1948, 170 F.2d 848, cert, den., 336 U.S. 926, 69 S.Ct. 645, 93 L.Ed. 1087; Ex parte Davis, Tex.Cr.App., 1967, 412 S.W.2d 46; Brown v. State, 1961, 171 Tex.Cr.R. 167, 346 S.W.2d 842. Cf. Ruiz v. United States, 3 Cir., 1966, 365 F.2d 500.

Similarly without merit is appellant’s contention that the sentencing statute would facilitate racial classification through the choice of the sentencing court and thus denies equal protection of the laws. Appellant has alleged no facts to support such a claim. Thus this claim is defeated by long established law that differing sentences within the maximum provided by statute for persons convicted of the same crime do not offend the Constitution. Howard v. Fleming, 1903, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121; Overstreet v. United States, 5 Cir., 1957, 367 F.2d 83.

Affirmed.

1

. It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981.

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453 F.2d 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eugene-f-earin-v-dr-george-j-beto-director-texas-department-of-ca5-1972.

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