484 F2d 944 Hardin v. W J Estelle

484 F.2d 944

Charles Edward HARDIN, Petitioner-Appellee,
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellant.

No. 73-2521 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Sept. 19, 1973.

John L. Hill, Atty. Gen. of Texas, Lonny F. Zwiener, Joe B. Dibrell, Asst. Attys. Gen., Austin, Tex., Jerry Buckner, Asst. Dist. Atty., James A. Mashburn, Dist. Atty., Midland, Tex., for respondent-appellant.

William Monroe Kerr, court-appointed, Midland, Tex., for petitioner-appellee.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

COLEMAN, Circuit Judge:

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In September, 1969, a jury in the Texas District Court at Midland convicted Charles Edward Hardin of robbery by assault. As a recidivist he was sentenced to imprisonment for life. The Texas Court of Criminal Appeals affirmed, 471 S.W.2d 60. He sought federal habeas corpus relief on the same grounds asserted in the Texas Courts, i. e., denial of compulsory process for his witnesses and denial of due process by being tried in leg shackles.


The appellate record indicates that Hardin has accomplished a "one man crime wave". Besides the Midland conviction, now under habeas review, Hardin is presently serving a sixty year term for robbery and a life sentence for theft. Not yet thirty years of age he has either pleaded guilty to or been convicted of about eleven crimes. Such a record is not calculated to inspire an outpouring of post-conviction sympathy. Nevertheless, Hardin is entitled to and, along with the State of Texas, has received an impartial consideration of the merits of this appeal.


On March 29, 1973, after a rather extended evidentiary hearing, United States District Judge D. W. Suttle directed that Hardin's petition be granted, both for the denial of compulsory process for his witnesses and because the use of leg shackles, while otherwise all right, had tainted an in-court identification by the only witness who identified the defendant as the Midland robber.


An appeal was filed. The Attorney General of Texas declined to pursue the appeal; but the District Attorney has done so and the case has been splendidly briefed for both the prisoner and the State.


Upon a thorough evaluation of the record and briefs we are satisfied that Judge Suttle's decision on the denial of compulsory process was right. Since the State of Texas has now adopted a rule for compulsory process for witnesses which should prevent any likelihood of a recurrence of the situation now before us we feel that further discussion would be of no precedential value.


Since the District Court was correct as to the denial of compulsory process we need not, and do not, intimate any opinion on the sub-shackles issue as it affected the identification offered by the lone identification witness.


Of course, the State, in its discretion, may try Hardin again, but any such trial should be begun within ninety days of the receipt of our mandate in the District Court if no good cause be shown for additional delay.

The judgment of the District Court is

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Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I