566 F2d 469 Howell v. Thomas

566 F.2d 469

Charles Ben HOWELL, Plaintiff-Appellant,
Carl THOMAS, Sheriff, Dallas County, Texas, Defendant-Appellee.

No. 77-1633

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Jan. 16, 1978.

Tom S. McCorkle, Jr., Melvyn Carson Bruder, Dallas, Tex., for plaintiff-appellant.

Henry Wade, Crim. Dist. Atty., John B. Tolle, Asst. Dist. Atty., Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, RONEY and RUBIN, Circuit Judges.


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Appellant Charles Ben Howell, a Texas attorney, was cited for contempt in a Texas state court for failure to disclose collateral legal proceedings when questioned by the judge during default proceedings in a divorce case. A second contempt charge occurred during the hearing on the first contempt charge when appellant refused to name any of the four attorneys he had allegedly approached to defend him. This Court examined the case and denied relief in a former appeal from a denial of a 28 U.S.C.A. § 2254 petition. Howell v. Jones, 516 F.2d 53 (5th Cir. 1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1116, 47 L.Ed.2d 321 reh. denied, 425 U.S. 945, 96 S.Ct. 1687, 48 L.Ed.2d 189 (1976).


The issues presented here have not been presented to the state courts. The district court ruled that "requiring Howell to resort to State procedures would deny him any effective relief. The requirement of exhaustion is therefore satisfied."


Appellant argues that in a disbarment proceeding following his conviction for contempt, a jury found in his favor on essentially the same facts. He contends the enforcement of the contempt order is thus collaterally estopped. No cases have been found which support the novel contention that the outcome of a second proceeding can collaterally estop the effect of an already concluded prior proceeding.


Appellant makes several further contentions: due process principles of fundamental fairness prohibit punishment in this case, the record fails to reflect that the state judge convicted petitioner of obstruction of justice, or, alternatively, the record is inadequate to stand in opposition to the jury verdict, and there was a variance between the charges and the evidence. None of these contentions are sufficient to justify relief in a federal court. The argument that the factual basis of the Fifth Circuit's prior opinion is incorrect misconceives both the prior opinion and the authority of one panel to overrule the decision of another panel of this Court.


A thorough examination of all appellant's contentions on appeal lead to the conclusion that the denial of Howell's petition for § 2254 relief must be




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