Tommy Potts v. W. J. Estelle, Director, Texas Department of Corrections
529 F.2d 450
5th Cir.
1976
Check Treatment
THORNBERRY, Circuit Judge:

Appellant Tommy Potts was convicted by a jury of murder and sentenced to twenty-five years in the custody of the Texas Department of Corrections. His conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals. See Potts v. State, 500 S.W.2d 156 (Tex. *452 Cr.App.1973). Appellant’s subsequent application for state habeas corpus relief was denied by the trial court without a hearing, and this denial was affirmed per curiam by the Court of Criminal Appeals. Appellant then filed a section 2254 habeas petition in federal district court. See 28 U.S.C. § 2254. The latter petition was also denied without a hearing, and the appeal at bar followed.

The principal object of appellant’s collateral attack on his state murder conviction is the prosecution’s use of ten previous misdemeanor convictions received over a period of approximately seventeen years to impeach the “self defense” testimony proffered by appellant at his trial. Appellant alleges in his federal petition that he was not represented by counsel at any stage in the disposition of these misdemeanors and that use of these prior convictions for impeachment purposes violates the rule of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), as applied retroactively in Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973). In his state habeas petition, which is incorporated by reference in the federal petition, appellant further alleges that he did not waive his right to counsel at the times of the misdemeanor prosecutions. On the strength of these allegations and for the following reasons, we remand appellant’s petition to the district court for ' an evidentiary hearing.

The State of Texas initially contends that appellant’s federal habeas petition is materially deficient because it does not allege indigency at the times of the misdemeanor convictions with sufficient clarity. Though it is a close question, we are of the opinion that appellant’s pro se petition could not be dismissed on the basis of an inadequate allegation of indigency. The standard against which we measure pro se complaints and petitions is and should be loose enough to accommodate the inartful pleader. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652, 653-654 (1972); of. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Admittedly, at no point in the pleadings filed in state and federal courts does appellant explicitly allege that he was indigent at the times he suffered the misdemeanor prosecutions and convictions. The emphatic reliance in his pleadings on Argersinger and Berry, however, delineates the nature of the federal claim asserted: an improper use of convictions obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Coupled with the reliance on Argersinger and Berry, appellant’s additional allegation that he did not waive his right to counsel provides the functional equivalent of an express allegation of indigen-cy. Examining appellant’s pleadings in a manner consistent with Haines, we cannot say that it appears “beyond doubt that [appellant] can prove no set of facts in support of his claim which would entitle him to relief.” See Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 596, 30 L.Ed.2d at 654. Accordingly, we hold that the district court erred in not affording appellant an opportunity to demonstrate his indigency at the times of his misdemeanor convictions. Moreover, if on remand appellant can establish his in-digency at the times in question, see Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971), the district court must then determine whether appellant knowingly and intelligently waived his right to counsel. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Wynn v. Smith, 446 F.2d 341, 349 (5 Cir. 1971); Goodwin v. Smith, 439 F.2d 1180, 1182-83 (5 Cir. 1971); Hillyer v. Dutton, 379 F.2d 809 (5 Cir. 1967); Davis v. United States, 376 F.2d 535 (5 Cir. 1967).

Of the ten misdemeanor convictions used to impeach appellant’s testimony, only six resulted in actual imprisonment *453 for appellant. 1 The findings and conclusions of the United States Magistrate, adopted by the district court as its own, were to the effect that the prosecution’s use of these six misdemeanor convictions was harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). As the Court of Criminal Appeals had done before him, the Magistrate assumed that the uncoun-seled convictions for which imprisonment had not been assessed were admissible for impeachment purposes. He found the additional damage to appellant’s credibility through introduction, albeit unconstitutional, of the misdemeanor convictions for which imprisonment had been assessed to be of a low order.

In Argersinger the Supreme Court left open the question of Gideon’s application to the situation where the maximum possible sentence for a particular offense is imprisonment, but the sentence actually imposed is only a fine or a term of imprisonment that is suspended. 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538. In Thomas v. Savage, 513 F.2d 536 (5 Cir. 1975), a habeas petitioner challenged the prosecution’s use of an uncounseled misdemeanor conviction in the punishment stage of his state trial for robbery by assault. The misdemean- or conviction at issue — aggravated assault — carried a possible maximum sentence of two years imprisonment and a $1000 fine. Though ultimately holding admission of the misdemeanor conviction to be harmless error, the panel in Thom- asdid answer the question left open in Argersinger.

The necessity for counsel is judged by the maximum penalty the defendant may receive. ... In this respect the cases of this circuit go beyond the Supreme Court’s decision in Argersinger v. Hamlin, . . ., which would only require the appointment of counsel when a sentence of imprisonment is imposed.

513 F.2d at 537 (emphasis in original); See Olvera v. Beto, 429 F.2d 131 (5 Cir. 1970).

*454 The answer provided by the “cases of this circuit” to the Argersinger question has not, however, always been the same. In Cottle v. Wainwright, 477 F.2d 269 (5 Cir. 1973), petitioner was, following his release on parole, convicted without the benefit of counsel on a charge of public drunkenness. The municipal court imposed the maximum penalty of twenty days imprisonment, but suspended the sentence. Approximately one month later, petitioner was again convicted without the assistance of a lawyer on a charge of public drunkenness, and the municipal court imposed an unsuspended sentence of twenty days. As might be expected, petitioner’s parole was revoked following the second conviction. Challenging the revocation by way of habeas corpus, petitioner contended that reliance by the parole board on his convictions for public drunkenness ran afoul of Argersinger. After correctly anticipating the retroactivity of Argersinger, both the majority of the panel, 477 F.2d at 273, and their concurring brother, 477 F.2d at 277, held that Argersinger applied only to the second misdemeanor conviction, for which imprisonment had actually been imposed. 2

Confronted with the choice between Cottle and Thomas, we follow the latter. Accord Olvera v. Beto, supra; Matthews v. Florida, 422 F.2d 1046, 1048 (5 Cir. 1970); James v. Headley, 410 F.2d 325, 329 (5 Cir. 1969). The logic of our choice should be clear. By dint of the serious problems associated with the prosecution of misdemeanors, the great concern in Argersinger was with the salutary contributions to be made through the presence of a lawyer in the courtroom representing the interests of the accused. 407 U.S. at 36-37, 92 S.Ct. at 2012, 32 L.Ed.2d at 537-538. The issues that arise in misdemeanor prosecutions are often complex and beyond the usual competence of the accused. Whether a sentence of imprisonment is or is not ultimately imposed has little bearing on the complexity of those issues or the ability of the accused to defend himself in the circumstances. Indeed, it may be that the most reliable barometer of the potential problems that can arise in such prosecutions is the maximum penalty the legislature has seen fit to designate for a particular misdemeanor.

Application of the Cottle rule, which looks to the punishment in fact assessed, can lead to curious practical results. For example, where co-defendants are tried together, the judge or the jury, as the case may be, sometimes imposes different sentences on the different co-defendants. Under the Cottle rule, a situation can arise where a co-defendant who is convicted but has his sentence suspended is not protected by Argersinger, but his co-defendant — convicted of the same crime — is not subject to later impeachment with his conviction because he is the recipient of a jail term. See Aldrighetti v. State, 507 S.W.2d 770, 773-75 (Tex.Cr.App.1974) (Onion, P. J., dissenting). The rule of Thomas avoids the type of situation depicted above and is, we believe, consonant with the concerns expressed by the Supreme Court in Ar-gersinger. For these reasons, we hold that the necessity of counsel in appellant Potts’s prior misdemeanor prosecutions is to be judged by the maximum possible sentence he could have received in each of those prosecutions.

All but one of the ten misdemeanor convictions introduced to impeach appellant’s testimony at his state murder trial carried a potential sentence of imprisonment. Only appellant’s vagrancy conviction in 1958, see note 1 supra, was limited in possible punishment to a fine, and vagrancy convictions are themselves rightfully subject to a healthy dose of *455 skepticism. Argersinger v. Hamlin, 407 U.S. at 33, 92 S.Ct. at 2010, 32 L.Ed.2d at 536; see Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1974). In consequence, if appellant Potts is able to establish prior indigency and the district court finds an absence of knowing and intelligent waivers at the times of the prior misdemeanor prosecutions, it will be the case that nine of the ten misdemeanor convictions used to impeach appellant were admitted in violation of Argersinger. See Thomas v. Savage, supra. Whatever may be the merit of the State’s harmless error argument given a different ratio between convictions properly admissible and those subject to exclusion under Argersinger, the argument carries little weight where the actual ratio is one to nine.

Appellant was tried for the murder of an innocent bystander struck by a bullet intended, the State successfully argued to the jury, for appellant’s brother. It was appellant’s testimony at trial that his brother advanced upon him with a large knife and that the fatal bullet was fired at the floor to discourage further advances by his attacker. 3 The success of appellant’s testimony hinged in large measure on the credibility assessment made of him by the jury. The State’s use of the misdemeanor convictions went, of course, directly to the question of appellant’s credibility. We reject the State’s argument that introduction of the nine uncounseled misdemeanor convictions was harmless error beyond a reasonable doubt. 4 See Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Chapman v. California, supra. On the contrary, if appellant is able to satisfactorily establish indigen-cy at the pertinent times, and the district court determines that appellant did not knowingly and intelligently waive his right to counsel at those times, it follows that the writ must issue unless the State retries appellant within a reasonable time to be determined by the district court. It must be borne in mind that given a silent record, the burden is on the State to demonstrate the appropriate waiver, Ford v. Wainwright, 526 F.2d 919 (5 Cir. 1976); Wynn v. Smith, supra, and every reasonable presumption against waiver must be indulged by the court below. United States v. Shea, 508 F.2d 82 (5 Cir. 1975).

Accordingly, we reverse and remand the case for proceedings in the district court consistent with this opinion. 5

Notes

1

. The following table displays appellant’s prior convictions.

DATE OF CONVICTION CHARGE MAXIMUM POSSIBLE PENALTY IMPRISONMENT IMPOSED ■
12/16/53 Procuring Six months imprisonment plus $200 fine None
12/16/53 Procuring and Vagrancy Procuring same as above; $200 fine for vagrancy None
12/16/53 Procuring Same as above 30 days
10/17/55 Worthless Check Two years imprisonment plus $1000 fine None
10/16/58 Procuring, reduced to Vagrancy Vagrancy same as above None
6/24/60 Procuring Same as above 60 days
1/13/65 Procuring Same as above 30 days
2/25/65 Procuring Same as above 60 days
2/17/66 Procuring Same as above 30 days
9/15/70 Worthless Check Two years imprisonment plus $2000 fine 30 days
2

. The decision in Cottle was vacated by the Supreme Court on other grounds and remanded for reconsideration in light of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Cottle v. Wainwright, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138 (1973), on remand, 493 F.2d 397 (5 Cir. 1974). The holding of the original Cottle panel that Argersinger only applied to the second misdemeanor conviction stands unaffected by the subsequent procedural events.

3

. Both appellant and his brother testified that the fatal bullet was fired at the floor as a warning shot. The jury was instructed on both self-defense and accident. See Potts v. State, 500 S.W.2d 156, 157 (Tex.Cr.App.1973).

4

. The State argues that the failure of appellant’s attorney to object at the time the misdemeanor convictions were introduced supports its contention that introduction of these convictions was harmless error. Brief for Appel-lee at 8. We are not bound, in making our harmless error determination, by the appraisal of importance or unimportance reflected in an attorney’s failure to object at trial. The proper test, and the one we apply, is “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut. 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1964), quoted approvingly in Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710 (1967).

On another, related matter, the State cannot contend that failure to object at the time of trial constituted a waiver and precludes appellant’s sixth amendment challenge. It need only be noted that appellant was convicted on November 19, 1971, and the decision in Arger-singer was not handed down until June 12, 1972. See Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973).

5

. We have examined petitioner’s other contentions and find them to be without merit. See Dumont v. Estelle, 513 F.2d 793 (5 Cir. 1975).