Baldwin v. Blackburn, Civ. A. No. 81-0554.

• Decision Date: 01 May 1981
• Docket Number: Civ. A. No. 81-0554.
• Parties: Timothy George BALDWIN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana.
• Court: U.S. District Court — Western District of Louisiana

524 F. Supp. 332

Timothy George BALDWIN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana.

Civ. A. No. 81-0554.

United States District Court, W. D. Louisiana, Monroe Division.

April 28, 1981.

On Motion For Certificate of Probable Cause and For Stay May 1, 1981.

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Cora Schley, Alexandria, La., Calvin Johnson, Dwight Doskey, New Orleans, La., for plaintiff.

John R. Harrison, Asst. Dist. Atty., Monroe, La., for defendants.

OPINION

NAUMAN S. SCOTT, Chief Judge.

I. BACKGROUND

Timothy George Baldwin was convicted by a jury in the Fourth Judicial District Court, Ouachita Parish, Louisiana, of first degree murder for the robbing and heinous beating to death of an 85 year old woman. The attack was effectuated by the use of various objects in the victim's home. She was found semi-conscious the next morning and taken to a nearby hospital where she died the following day of head injuries. At the sentencing phase of the trial, the jury found two statutory aggravating circumstances,¹ considered the statutory mitigating circumstances and unanimously recommended the death penalty — a verdict binding upon the trial court. This process comports with Louisiana Code of Criminal Procedure art. 905 et seq.

Baldwin's conviction and sentence were appealed to and affirmed by the Louisiana Supreme Court. State v. Baldwin, 388 So.2d 664 (La.1980). Petitioner's execution was stayed by that court pending an appeal to the United States Supreme Court, which denied the Writ of Certiorari, Baldwin v. Louisiana, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981), and Petition for Rehearing. Baldwin v. Louisiana, 450 U.S. 971, 101 S.Ct. 1493, 67 L.Ed.2d 622 (1981). The stay was dissolved. Thereafter, the trial court signed Baldwin's death warrant and set the execution for March 31, 1981, between 12:00 o'clock midnight and 3:00 o'clock A.M. Baldwin then filed an application for a Stay of Execution and an Application for a Writ of Habeas Corpus in the Fourth Judicial District Court. These applications were denied for lack of jurisdiction on March 26, 1981. An Application for a Stay of Execution and for Review of an Application for Post-Conviction Relief were denied by the Louisiana Supreme Court without written reasons on March 27, 1981. Baldwin next sought a stay of execution and an Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 on March 27, 1981, before this court.

Considering the time constraints² and the facial substantiality of petitioner's claims, we stayed the execution pending our determination of the merits. See Rosenburg v. United States, 346 U.S. 273, 288, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953) (per curiam); see also Evans v. Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979); Shaw v. Martin, 613 F.2d 487, 491-492 (4th Cir., 1980).

II. STANDARDS OF REVIEW

In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the Supreme Court elucidated the reviewing posture of a federal habeas court under § 2254(d):

"... the findings made by the state court system `shall be presumed to be correct' unless one of seven conditions specifically set forth in § 2254(d) (is) found to exist by the federal habeas court. If none of those seven conditions (are) found to exist, or unless the habeas court concludes that the relevant state determination is not `fairly supported by the record', `the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court (is) erroneous' (emphasis supplied)." (Footnote omitted). Sumner v. Mata, supra, 449 U.S. at 550, 101 S.Ct. at 771, 66 L.Ed.2d at 733.

See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The Sumner court made it clear that a "hearing" on a state prisoner's habeas petition by a state trial or appellate court requires an adversarial airing of the issues but no set procedures. Sumner v. Mata, supra, 449 U.S. at 546, 101 S.Ct. at 769, 66 L.Ed.2d at 730-731; see Germany v. Estelle, 639 F.2d 1301 (5th Cir., 1981). The state court's factual determinations are sufficient if evidenced by "... a written finding, written opinion or other reliable and adequate written indicia." Sumner v. Mata, supra, 449 U.S. at 546-547, 101 S.Ct. at 769, 66 L.Ed.2d at 730-731; 28 U.S.C. § 2254(d).

The petitioner has exhausted his state remedies regarding the many claims presented to us. Most, but not all, of these claims have been decided with written findings by the Louisiana Supreme Court. The petitioner's burden of proof is not as great where no written findings support a state court's habeas decision. For both categories of claims we have endeavored to thoroughly investigate the record of the case. However, our disposition of the latter group of issues necessarily entails a more independent degree of findings under Sumner and the language of § 2254(d). We then are guided by the dictates of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

"We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — an applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." (footnote omitted). Jackson v. Virginia, supra, at 324, 99 S.Ct. at 2792.

Based upon the record and the nature of petitioner's claims, no evidentiary hearing is necessary. See Spinkellink v. Wainwright, 578 F.2d 582, 590 (5th Cir., 1978).

III. THE CLAIMS

Several arguments raised by Baldwin fall under the rubric of "ineffectiveness of counsel" and represent mixed questions of law and fact. U. S. v. Gray, 565 F.2d 881, 887, n. 18 (5th Cir., 1978), cert. denied 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). The Fifth Circuit construes effectiveness of counsel as "counsel (that) is reasonably likely to render and (does) render reasonably effective counsel" considering the federal habeas court's "... inquiry into the actual performance of counsel in conducting the defense and a determination whether reasonably effective assistance was rendered based upon the totality of the circumstances and the entire record." U. S. v. Gray, supra, at 887. See Beavers v. Balkom, 636 F.2d 114 (5th Cir., 1981). Counsel's performance need not be errorless to satisfy a defendant's Sixth Amendment rights. Kemp v. Leggett, 635 F.2d 453 (5th Cir., 1981); Beavers v. Balkom, supra, at 3449; MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir., 1960), modified 289 F.2d 928 (5th Cir., 1961), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). Frivolous or generalized grievances in this vein warrant no consideration by a federal habeas court. See Sumner v. Mata, supra, 449 U.S. at 548, 101 S.Ct. at 770, 66 L.Ed.2d at 732; see also U. S. v. Gray, supra.

At the outset we note that Baldwin was represented by two experienced criminal lawyers. Their work included three months of pretrial preparations during which time numerous substantive motions were urged, a five day trial and extensive post-trial litigation. Considering the evidence, the character of the defendant and the circumstances of the crime, we are compelled to find that Baldwin's counsel were effective enough to pass constitutional muster.

Baldwin raises two arguments that seek to undercut counsel's overall trial work— their failure to develop an alibi defense or proof of intoxication. Baldwin also points out counsel's ineffectiveness in not moving for a new trial after evidence allegedly corroborating his alibi became known.

Counsel looked into the possible alibi that Baldwin was at a motel 70 miles from Monroe at the time of the offense. He continued his investigative efforts up to 5 months after the trial, until receiving information from the motel regarding Mr. Baldwin's reservations there on the night in question. It is not the province of this court to second-guess counsel. Obviously, had an adequate alibi defense been available, it would have been developed; and had new "evidence" been of value, counsel would not have ignored it having secured the information after several months.

As for the mitigating circumstances of Baldwin's intoxication, some evidence related to drinking was elicited at trial. This court will not scrutinize counsel's decisions in choosing not to develop that evidence further. Nor will we judge such experienced counsel by hindsight, Beckham v. Wainwright, 639 F.2d 262 (5th Cir., 1981); Lovett v. Florida, 627 F.2d 706 (5th Cir., 1980), even if "... in retrospect it is apparent that counsel chose the wrong course." Beckham v. Wainwright, supra, at 265; see Akridge v. Harper, 545 F.2d 457 (5th Cir., 1977).

Possible defenses are almost without number. Every case has a theory of defense. Certainly counsel is not obligated to file every available defense regardless of merit, nor is he obligated to introduce evidence in support of or to clutter or confuse the record with reasons why he chose not to utilize every defense. No record could withstand such scrutiny.

Two arguments attacking counsel's performance focus on the absence of an investigation and presentation of a "psychiatric defense" or "psychiatric evidence of mitigating value." The Louisiana Supreme Court did not make written findings on effectiveness of counsel. However, its determination that the evidence adequately showed Baldwin to be sane and in no way mentally impaired during commission of the offense bears on the effectiveness issue. State v. Baldwin, supra, at 670, 676 and 678.³

"The evidence does not establish that defendant was too intoxicated to realize what he was doing at the time the crime was committed, and there is ample evidence of the requisite specific intent at the time the crime was

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