(DOWNLOAD) "Montgomery v. Estelle" by United States Court of Appeals for the Fifth Circuit # eBook PDF Kindle ePub Free
eBook details
- Title: Montgomery v. Estelle
- Author : United States Court of Appeals for the Fifth Circuit
- Release Date : January 27, 1978
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 54 KB
Description
THORNBERRY, Circuit Judge In this consolidated appeal from denial of habeas corpus relief, both petitioners Montgomery1 and Resendez assert that Texas Penal Code, Art. 63 (repealed January 1, 1974, now V.T.C.A. Penal Code, § 12.42[d])2 was improperly used in plea bargaining.3 Both petitioners contend that they were charged under the Texas habitual offender statute only after they refused to plead guilty to an unenhanced offense.4 This, they assert, amounts to prosecutorial vindictiveness for choosing to demand a jury trial and plead not guilty. In view of Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978), we affirm. In Bordenkircher, id. the Supreme Court examined the propriety of using a similar Kentucky habitual offender statute as a device to encourage a guilty plea to an unenhanced charge. In approving the use of the Kentucky Habitual Criminal Act in plea bargaining, the Supreme Court said that there was no ""element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer."" Id. at , 98 S. Ct. at 668. We think that the Supreme Court's approval of the use of the Kentucky Habitual Criminal Act in plea bargaining, necessarily allows the use of the Texas Habitual Offender Act in similar circumstances. See Martinez v. Estelle, 527 F.2d 1330 (5 Cir. 1976); Arechiga v. State of Texas, 469 F.2d 646 (5 Cir. 1972); Breen v. Beto, 341 F.2d 96 (5 Cir. 1965), cert. denied, 386 U.S. 926, 87 S. Ct. 867, 17 L. Ed. 2d 798 (1967).