#### Paul Adam GIBBS, Appellant, v. Dr. George *J.*BETO, Director, Texas Department of Corrections, Appellee.

No. 21208.

*United*States Court of Appeals Fifth Circuit.

May 22, 1964.

*443Herman Wright, Houston, Tex., for appellant.

Samuel H. Eobertson, Jr., Asst. Dist. Atty., Sam. E. Wilson, Asst. Atty. Gen., State of Texas, Houston, Tex., Frank Briscoe, Dist. Atty., Harris County, Houston, Tex., for appellee.

Before HUTCHESON, PEETTYMAN* and JONES, Circuit Judges.

*

**Senior Circuit Judge of the District of Columbia Circuit, sitting by designation.

PER CURIAM:

This is an appeal from an order of the District Court denying the application of Paul Gibbs for a writ of habeas corpus, The ground presented is ineffective assistance of counsel upon the trial.

, , , Gibbs made his application some six . . *. .*... , . years after he pleaded guilty to armed 1.1. mi t\ • j. • x t i ; . robbery. The District Judge held a hear- , , . „ . . . TT mg and rendered a careful opinion. He , found that two lawyers had represented n... , , , . t . Gibbs. The first was a retained counsel, , , . . . . j. . . ... . , who advised him to plead guilty and to , ~ . , ,. accept a 25-year sentence offered by the ,, . . distnct attorney rather than risk a man- , , , , ... . . . datory life sentence as an habitual crimi- , . ,, .. nal on charges then pending. Gibbs re-j. . , ... , ... , . fused, and this lawyer withdrew. An- ... . , , ...... other lawyer was appointed, and it is his „ . . • , . . r,.,, , . representation which Gibbs contends was ineffective.

This lawyer was aware that upon two prior occasions Gibbs had been committed for insanity1 in civil proceedings, which the District Court judge in the present proceedings suggests were devices adopted by Gibbs’s family. The lawyer also knew that the State had recently secured a mental examination which showed Gibbs to be sane. He had served several sentences for criminal offenses. On this lawyer’s advice Gibbs pleaded guilty and accepted the sentence °f 25 years. The habitual criminal char^s and two other charges for armed Jobbery were dismissed.

Gibbs claimed that the lawyer advised him not to raise insanity as a defense at trial. The lawyer himself answered interrogatories, in which he stated that he was unaware that Gibbs had prior convictions when he advised him to plead guilty, and that he had no knowledge of the adjudications of insanity. However this evidence conflicts with the testimony of Gibbs wbich was credited by the trial judge.2

^'^ie facts found by the trial judge are adequately supported by the record. mi ,> . ^ Those facts portray a dilemma not un- . . , ,. m. . . common m criminal practice. This law- . ,, , . . . yer knew that if the case went to trial and ... ,. conviction was obtained his client would „ , , ... face a mandatory life sentence as an , , ., . . . . nabitual criminal. The district attorney „ . , .. . ,. ... . offered to dismiss these latter charges m . „ ... . , , exchange for a guilty plea to armed rob- . ° . . . ... .... bery. The lawyer advised his client to , „ r , . ,. ., accept one of two undesirable alterna- ,. ... ,. ..... ,, , tives. We agree with the trial judge that .... f , , „ : „ this does not make out a case of meffee- . , . . tive assistance of counsel,

Affirmed.

1

. Two juries had found Gibbs to be of unsound mind. He had spent about a year in a mental hospital the first time and twenty days the second time.

2

. Both Gibbs and his mother testified that the lawyer knew of the prior commitments. Gibbs testified that he had conferred with the lawyer on several oecasions and that they must have discussed the habitual criminal indictments. The interrogatories concerned events six years old, and it is not unreasonable to assume that this passage of time dimmed the lawyer’s recollection.