Kirkpatrick v. Blackburn, 84-5025.

• Citation: 597 F. Supp. 1562
• Decision Date: 03 December 1984
• Docket Number: No. 84-5025.,84-5025.
• Parties: Frederick KIRKPATRICK D.O.C. Number 100337, Petitioner, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and The Attorney General of the State of Louisiana, Respondents.
• Court: U.S. District Court — Eastern District of Louisiana

597 F. Supp. 1562

Frederick KIRKPATRICK D.O.C. Number 100337, Petitioner, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and The Attorney General of the State of Louisiana, Respondents.

No. 84-5025.

United States District Court, E.D. Louisiana.

December 3, 1984.

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Patrick L. Durusau, Jena, La., for petitioner.

William R. Alford, Covington, La., for respondents.

MEMORANDUM AND ORDER

SEAR, District Judge.

Frederick Kirkpatrick, a state prisoner, seeks habeas corpus relief from and a stay of execution of the death sentence imposed upon him in the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana following his conviction by a jury on November 10, 1982 for the crime of murder in the first degree. Although proceeding in forma pauperis, he has chosen Patrick Durusau as counsel to represent him in these proceedings.

The facts surrounding the offense are set out in sufficient detail and clarity in his direct appeal to Louisiana's Supreme Court that their repetition here is not warranted. See State v. Kirkpatrick, 443 So.2d 546 (La.1983). As grounds for relief, Kirkpatrick alleges 24 constitutional violations, which may be characterized as: 1) denial of his Sixth Amendment right to effective assistance of counsel; 2) violation of his Fourth Amendment right against unlawful arrest, search and seizure; 3) violation of his Fifth Amendment right against self-incrimination; 4) violation of his right to grand and petit juries selected from a fair cross-section of his community under the Sixth and Fourteenth Amendments; 5) violation of his Eighth Amendment protection against cruel and unusual punishment; and 6) violations of his Fourteenth Amendment right to due process.

Kirkpatrick claims to have exhausted his available state remedies. The state has not responded to this or any of petitioner's other claims and has filed no pleadings whatsoever in this proceeding. Accordingly, the State has waived any objection to a lack of exhaustion of state remedies. See Barksdale v. Blackburn, 670 F.2d 22, 24 (5th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2912, 73 L.Ed.2d 1319 (1982). In any event, all but one of Kirkpatrick's claims were in fact presented in a habeas corpus petition filed in state court.

The single ground for relief not presented in that petition is Kirkpatrick's contention that his present counsel was ineffective in the state habeas proceeding. However, the purpose of habeas corpus is to afford one in custody the opportunity to attack the legality of that custody and to secure release from illegal custody. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Since petitioner's trial for first degree murder and not the state habeas corpus proceeding determined the custody about which he complains, a claim of ineffective assistance of counsel in the later proceeding does not relate to the validity of Kirkpatrick's conviction, and does not provide a basis for federal habeas relief. See Taylor v. Maggio, 727 F.2d 341, 348 (5th Cir.1984).

Furthermore, the adequacy of counsel in state habeas proceedings cannot be the basis of federal habeas relief because the state has no constitutional duty to provide counsel in collateral proceedings. Green v. McGougan, 744 F.2d 1189 at 1190 (5th Cir.1984); Jones v. Estelle, 722 F.2d 159, 167 (5th Cir.1983). Thus, although Kirkpatrick did not present this claim to the Louisiana Supreme Court on appeal from the decision of the state habeas judge denying post-conviction relief, he has exhausted his state remedies with respect to those of his claims that are properly cognizable by a federal habeas court. Kirkpatrick's petition is therefore properly before this court.

Kirkpatrick filed his petition for federal habeas relief on October 17, 1984. I conducted a hearing on October 19, 1984 to permit counsel for petitioner to articulate and define fully his claims. On October 20, 1984, I ordered that Kirkpatrick's execution be stayed because insufficient time remained prior to the execution scheduled for October 23, 1984 to allow me to review completely the voluminous record—including the transcripts of both petitioner's trial and his state habeas hearing—in light of petitioner's numerous claims.

Standard of Review

A federal habeas court need hold an evidentiary hearing only if "the habeas applicant did not receive a full and fair evidentiary hearing in a state court either at the time of the trial or in a collateral proceeding." Townsend v. Sain, 372 U.S. 293 at 312-13, 83 S.Ct. 745 at 756-57, 9 L.Ed.2d 770 (1963). See Austin v. McKaskle, 724 F.2d 1153, 1156 (5th Cir.1984).

After a state post-conviction hearing has been held on the merits of a petitioner's claim, there is a statutory presumption of correctness attached to the state court's findings of fact in a subsequent federal habeas corpus proceeding. Walker v. Maggio, 738 F.2d 714, 717 (5th Cir.1984); Armstead v. Maggio, Infra, 720 F.2d at 895-96; see 28 U.S.C. § 2254(d). Therefore, unless the state court hearing was inadequate under the circumstances or the findings of fact are not fairly supported by the record, federal courts must defer to the state court's findings. Walker v. Maggio, supra, 738 F.2d at 717 (citing Smith v. Estelle, 711 F.2d 677, 681-82 (5th Cir.1983)), cert. denied, ___ U.S. ___, 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984).

However, of the 23 claims previously presented to the state habeas court, an evidentiary hearing was conducted with respect to only six of them. Moreover, the state habeas judge, who was also the trial judge, gives no hint of his reason for and no citation to legal authority supporting his rejection of petitioner's remaining constitutional claims without hearing. He made few specific findings of fact and filed neither written findings of fact nor conclusions of law into the record. Indeed, had the state judge afforded Kirkpatrick a full hearing on all of his constitutional claims and made clear findings from the evidence, it would not have been necessary for me to scrutinize meticulously the entire state court record to determine whether factual findings could be inferred that supported his conclusions. Nevertheless, the Supreme Court has held that federal habeas courts must give appropriate deference to implicit factual findings of a state habeas court when the state court conducts a hearing and enters a judgment from which findings of fact may be inferred. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983).

State Evidentiary Hearing

The six claims for which the state judge permitted Kirkpatrick to present evidence in the state habeas proceeding fall into three categories: ineffective assistance of counsel; unrepresentative grand and petit juries; and denial of due process.

A. Ineffective Counsel

Kirkpatrick claims that the counsel representing him in Louisiana from the time of his extradition from Mississippi through his appeal to the Louisiana Supreme Court were ineffective and cites nearly 130 examples of alleged ineffectiveness. A representative, albeit necessarily incomplete list includes the failure of his trial counsel, Thomas Ford, to: (1) object to allegedly improper prosecutorial statements; (2) challenge the validity of the warrants for his arrest and the search of home; (3) investigate and interview witnesses prior to trial; (4) move to suppress oral inculpatory statements; (5) conduct adequate voir dire examination of the talesmen, including failure to rehabilitate those talesmen excluded for cause because of their attitude toward the death penalty; (6) prepare Kirkpatrick before he testified at trial; (7) object to improper jury instructions; and (8) file a meaningful brief on direct appeal to the Louisiana Supreme Court. Many of these examples form the basis of other independent claims for relief in this petition. Kirkpatrick also contends that Ford's workload as a public defender was so excessive as to render his assistance per se ineffective.

The state court received evidence on both these claims and concluded that:

Mr. Ford is competent. Mr. Ford is experienced. I understand and appreciate the arguments made by counselor for the petitioner throughout this day... This is hindsight, counsel.

I am convinced that the jury's determination that death was the appropriate punishment in this case is reliable. I am not convinced that in any way this reliability was undermined by the action of Mr. Ford or Mr. Johnson Ford's assistant. I feel they were diligent and I have no doubt about the conscientious efforts of both these attorneys. In their defense of Mr. Kirkpatrick and their plea to the jury for his life, this jury was presented with evidence of a heinous offense, and ... I feel that the efforts of Mr. Ford were just as good, were comparable with those of the attorneys who were able to walk away from the trial with their client receiving only a life sentence.

Habeas Transcript (hereinafter "H.R.") at 491-92.

Whether a defendant has received ineffective assistance of counsel is a mixed question of fact and law. Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983). While findings of basic historical fact made after an evidentiary hearing are presumed to be correct under 28 U.S.C. § 2254(d), the trial judge's ultimate conclusion as to whether Kirkpatrick enjoyed effective assistance of counsel is subject to review under a different standard. It is necessary that I make an independent evaluation based on the trial judge's findings of historical fact. See Armstead v. Maggio, supra, 720 F.2d at 896. Unfortunately, the state judge failed to make any express findings of historical fact.

To succeed on a claim of ineffective assistance of counsel a defendant must demonstrate both that his counsel's performance was deficient, and that the performance so...