Otis Loper v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

Otis Loper v. Dr. George J. Beto, Director, Texas Department of Corrections

383 F.2d 400, 1967 U.S. App. LEXIS 4934

Court of Appeals for the Fifth Circuit·Decided October 6, 1967·No. 24408·Published·Cited by 11 cases

Opinion

PER CURIAM:

Appellant, a Texas convict, was convicted of rape on November 20, 1947, and was sentenced to serve 50 years in the Texas penitentiary. Appellant brought a petition for a writ of habeas corpus in the United States District Court for the Southern District of Texas alleging, inter alia, that he was denied the right to appeal his conviction because his court-appointed counsel abandoned his case. The district court denied the petition without an evidentiary hearing. We reverse and remand the case to the district court for a hearing on appellant’s allegation that he was denied the right to appeal and that he was an indigent during the time allowed by Texas for the perfecting of an appeal.

The abandonment by a court-appointed attorney of an indigent defendant’s appeal may well deprive a convicted defendant of his constitutional rights. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2 Cir. 1967), 36 U.S.L.W. 2144; Wainwright v. Simpson, 360 F.2d 307 (5 Cir. 1966); Edge v. Wainwright, 347 F. 2d 190 (5 Cir. 1965); Pate v. Holman, 341 F.2d 764 (5 Cir. 1965). Appellant’s petition indicates that he was indigent *401 at the time of his conviction. Such petition also indicates that he desired to appeal his case but that he was denied this right because his court-appointed counsel abandoned the case. Although the trial court was unquestionably justified in concluding that the pro se petition in this case was inartfully drafted, we do not believe it was unintelligible. From an examination of the petition we conclude that factual issues were raised with respect to the denial of the right to appeal from the conviction of rape. In our view a plenary hearing is necessary to ascertain the facts.

We therefore remand the case to the district court for a hearing to determine the facts surrounding appellant’s attempt to appeal his conviction and whether such facts amounted to a deprivation of his constitutional rights under the above cited cases.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

Appellant, a Texas convict, was convicted of rape on November 20, 1947, and was sentenced to serve 50 years in the Texas penitentiary. Appellant brought a petition for a writ of habeas corpus in the United States District Court for the Southern District of Texas alleging, inter alia, that he was denied the right to appeal his conviction because his court-appointed counsel abandoned his case. The district court denied the petition without an evidentiary hearing. We reverse and remand the case to the district court for a hearing on appellant’s allegation that he was denied the right to appeal and that he was an indigent during the time allowed by Texas for the perfecting of an appeal.

The abandonment by a court-appointed attorney of an indigent defendant’s appeal may well deprive a convicted defendant of his constitutional rights. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2 Cir. 1967), 36 U.S.L.W. 2144; Wainwright v. Simpson, 360 F.2d 307 (5 Cir. 1966); Edge v. Wainwright, 347 F. 2d 190 (5 Cir. 1965); Pate v. Holman, 341 F.2d 764 (5 Cir. 1965). Appellant’s petition indicates that he was indigent *401 at the time of his conviction. Such petition also indicates that he desired to appeal his case but that he was denied this right because his court-appointed counsel abandoned the case. Although the trial court was unquestionably justified in concluding that the pro se petition in this case was inartfully drafted, we do not believe it was unintelligible. From an examination of the petition we conclude that factual issues were raised with respect to the denial of the right to appeal from the conviction of rape. In our view a plenary hearing is necessary to ascertain the facts.

We therefore remand the case to the district court for a hearing to determine the facts surrounding appellant’s attempt to appeal his conviction and whether such facts amounted to a deprivation of his constitutional rights under the above cited cases.

Otis Loper v. Dr. George J. Beto, Director, Texas Department of Corrections, 383 F.2d 400, 1967 U.S. App. LEXIS 4934 (5th Cir. 1967).

Pincite

383 F.2d 400 (Otis Loper v. Dr. George J. Beto, Director, Texas Department of Corrections) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related