569 F.2d 1318 (5th Cir. 1978), 77-1265, Gandy v. State of Ala.

Docket Nº:77-1265.
Citation:569 F.2d 1318
Party Name:Earl Edward GANDY, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
Case Date:March 23, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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569 F.2d 1318 (5th Cir. 1978)

Earl Edward GANDY, Petitioner-Appellant,


STATE OF ALABAMA, Respondent-Appellee.

No. 77-1265.

United States Court of Appeals, Fifth Circuit

March 23, 1978

Robert R. Bryan, Birmingham, Ala. (Court-appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., Jane LeCroy, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

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

Before MORGAN, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This appeal from the denial of federal habeas corpus relief presents the issue

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whether the refusal by the state trial court either to grant a motion for a reasonable continuance in order that the defendant have the assistance at trial of counsel whom he had chosen and retained or in some other manner assure the continued attendance of the retained counsel, who announced an intention to abandon the defendant in mid-trial and later did so, was a deprivation of due process violative of the Fourteenth Amendment. U.S.Const. Amend. XIV. Given the specific and unique facts of this case, we hold that Petitioner-Appellant was denied due process of law and reverse.


What began as an ordinary state criminal case soon developed into a constitutionally extraordinary proceeding requiring our review and reversal of the district court's denial of federal habeas corpus relief. On February 6, 1970, the grand jury of Jefferson County, Birmingham, Alabama returned an indictment against Petitioner-Appellant, Earl Edward Gandy ("Petitioner"), charging him with the carnal knowledge of a girl over the age of twelve and under the age of sixteen. 1 Petitioner was served with a copy of the indictment on

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May 21, 1970. He was arraigned in the presence of his retained counsel, Ralph E. Coleman, and entered a plea of not guilty on December 2, 1970. 2 The docket was called in the Jefferson County Circuit Court on February 22, 1971, and when the case against Petitioner was announced a Mr. Rainey told the court that Coleman, Petitioner's retained attorney, would be present on the next day, but that he did not have the authority to announce ready for the defense. At this point a strange sequence of events occurred. The case came on for trial the next day, February 23, 1971. The defense never formally announced ready; and Coleman advised the court that on the following day he would be engaged in the trial of a civil action in the Circuit Court of Talledega County and a jury had already been struck for the case the previous day with out-of-town witnesses having been subpoenaed. There is no indication in the record that Coleman made any effort to postpone or substitute other counsel in the civil case. Instead, he announced his intention to attend the other trial and moved for a continuance until the civil trial in Talledega County was complete. In the face of this ultimatum, the trial court did not even suggest that Coleman's abandonment would not be tolerated. Rather, he presented an attitude of insensitivity for Petitioner's rights by seemingly countenancing the proposed desertion by an officer of his court. After brief arguments, the motion for a continuance was denied. When it became obvious that Petitioner would be compelled to proceed to trial immediately, arrangements were made for J. Sherrill Hancock, Coleman's law partner, to assist in the case. Both Coleman and Hancock strenuously objected to the denial of the motion for continuance. It is uncontroverted in the record that Coleman was familiar with the case and was prepared for trial. 3 It is also uncontroverted in the record that Hancock had no relation to the case prior to February 23, 1971, and was completely unfamiliar and unprepared. Nevertheless, the trial began. Coleman was present for the remainder of the day and, along with Hancock, conducted the defense. When the trial reconvened on February 24, 1971, Coleman was not present and Hancock conducted the defense. Petitioner was found guilty and punishment was fixed at ten years imprisonment. On direct appeal, Petitioner's conviction was affirmed. Gandy v. State, supra. After exhausting further remedies available in the state courts, Petitioner filed a petition for habeas corpus relief in the United States District Court for the Northern District of Alabama which was denied because, in the district court's opinion, the issue raised had been adequately treated by the Court of Criminal Appeals of Alabama and did not raise a federal constitutional question. This appeal followed.


Our initial premise, that the right to counsel is a vital component in the scheme of due process and the keystone of our adversary system of criminal justice, can be traced to the seminal case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In that case the Supreme Court held that the right of an accused person to have the aid of counsel for his defense, at least in a capital case, was one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment. The Court stated:

It never has been doubted by this court, or any other so far as we know, that notice and hearing are preliminary

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steps essential to the passing of an enforceable judgment, and that they, together with a legally competent tribunal having jurisdiction of the case, constitute basic elements of the constitutional requirement of due process of law. . . .

What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. . . . If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

Powell v. Alabama, supra at 68-69, 53 S.Ct. at 64.

Even prior to the extensions of this protection in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), judicial refinement of the right to counsel concept suggested that the mere representation by counsel, per se, would not always satisfy minimal due process standards. 4 Rather, it appeared that the right to counsel theme had variations other than the mere pro forma appointment of an attorney. For example, in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Supreme Court suggested one such variation on the theme by holding that the representation of codefendants by otherwise competent counsel violated Sixth Amendment rights when it appeared that the interests of the codefendants might be in conflict. See also Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thus, the quality of legal assistance has become a factor in determining whether a trial comports with due process. See MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961).

This Court in Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.) (en banc), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975), held that two independent constitutional provisions, each requiring a distinct analysis, provide a federal court with the authority to inquire into the quality or effectiveness of representation of privately retained counsel in a state criminal case. Under the first analysis, the Fourteenth Amendment itself is violated whenever a retained defense attorney is so blatantly ineffective that a trial is rendered fundamentally unfair because the state's criminal justice system has failed to afford the defendant fundamental fairness; and the consequent fine or imprisonment is unconstitutional. Under the second analysis, when retained counsel's performance is less than reasonably effective yet not so grossly defective to render the proceeding fundamentally unfair, the Sixth Amendment right to counsel incorporated in Fourteenth Amendment due process 5 is violated if it is "shown that some responsible state official connected with the criminal proceeding . . . could have remedied the conduct (and) failed in his duty to accord justice to the accused." Id. at 1337. See also Cantrell v. Alabama, 546 F.2d 652 (5th Cir. 1977); United States ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976); Alavarez v. Wainwright, 522 F.2d 100 (5th Cir. 1975); Loftis v. Estelle, 515 F.2d 872 (5th Cir. 1975).

A concomitant due process doctrine, a variation on the right to counsel theme, has evolved which basically guarantees a defendant both a fair opportunity to be represented by counsel of his own choice and a sufficient time within which to prepare a defense.

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In Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), the defendant was charged with two separate offenses scheduled to be tried on the same day. On the day of the trial, he appeared without counsel, intending to plead guilty, and was told for the first time that he was to be tried under the state's habitual criminal statute which carried serious penalties. He promptly requested a continuance to enable him to obtain counsel. The request was denied and the case immediately proceeded to trial which ended in his conviction. The Supreme Court reversed the conviction stating:

Petitioner did not ask the trial judge to furnish him counsel; rather, he asked for a continuance so that he could obtain his own. The distinction is well established in this Court's decisions. Regardless of whether petitioner would...

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