441 F2d 729 Merlo v. J Beto

441 F.2d 729

Louis J. MERLO, Petitioner-Appellant,
v.
Dr. George J. BETO, Respondent-Appellee.
No. 31032. Summary Calendar.*
*Rule 18, 5 Cir. See Isbell Enterprises, Inc
v.
Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431
F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

April 30, 1971.

Louis J. Merlo, pro se.

Crawford C. Martin, Atty. Gen., Roland Daniel Green, III, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

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1

Merlo appeals from the District Court's denial of his petition for habeas corpus relief. He contends that his burglary conviction is invalid because his court-appointed counsel refused his request to move for a sanity hearing. We affirm.

2

Having pled guilty to a charge of burglary, Merlo was convicted and sentenced in the 147th District Court of Tarrant County, Texas. Although Merlo filed no direct appeal, he has exhausted available post-conviction remedies under 28 U.S.C.A. 2254 and the Texas Code of Criminal Procedure art. 11.07. See Carroll v. Beto, 5 Cir. 1967, 379 F.2d 329; Henderson v. Beto, N.D.Tex.1970, 309 F.Supp. 244, 246-247. After a full evidentiary hearing, the state trial judge entered written findings of fact and conclusions of law denying relief. The court held that Merlo was legally sane when he pled guilty, that he did not ask his counsel to move for a sanity hearing, that he received effective assistance from competent counsel, and that he knowingly and voluntarily pled guilty to the offense charged. Without written opinion, The Texas Court of Criminal Appeals affirmed.

3

In considering Merlo's federal habeas corpus petition, the District Court adopted the state trial court's findings of fact. The District Judge held that on advice of competent counsel, Merlo consciously waived any possible insanity defense. The record fully supports the District Court's determination. See Daugherty v. Beto, 5 Cir. 1967, 388 F.2d 810, 812-814, cert. denied, 1968, 393 U.S. 986, 89 S.Ct. 461, 21 L.Ed.2d 447; Clark v. Beto, 5 Cir. 1966, 359 F.2d 554, 557, cert. denied, 1967, 386 U.S. 927, 87 S.Ct. 875, 17 L.Ed.2d 799.

4

Affirmed.