Nelson v. Estelle, 79-3817

Citation642 F.2d 903
Decision Date17 April 1981
Docket NumberNo. 79-3817,79-3817
PartiesRonald Clyde NELSON, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant. . Unit A
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Charles A. Sharman, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Erik S. Goodman, Staff Counsel for Inmates, Sugar Land, Tex., for petitioner-appellee.

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

Before BROWN, THORNBERRY and WILLIAMS, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Third Time's A Charm

Appellant, Texas Department of Corrections, appeals from the District Court's granting of habeas corpus relief, 28 U.S.C.A. § 2254 to appellee, Ronald Clyde Nelson. Nelson was indicted on three counts for the sale of heroin and tried on a plea of not guilty in March of 1973. The state prosecution presented only two witnesses at trial an undercover agent and a state chemist. In the course of the chemist's testimony three narcotics lab submission reports State's exhibits nos. 13, 14, 15 were offered into evidence and admitted, over the objection of Nelson's counsel. These reports were identical except that each corresponded to only one of the respective heroin counts. 1

Nelson's counsel objected to the admission of exhibit number 13 on the basis that a proper predicate had not been established, number 14 claiming that there had been no showing of a chain of custody, and number 15 as hearsay. All objections were overruled. The jury convicted Nelson of all three charges and the trial judge sentenced him to serve concurrent 50 year terms on each count.

Represented by new counsel, Nelson directly appealed his conviction based on the admission of State's exhibits 13, 14 and 15. The Texas Court of Criminal Appeals, Nelson v. State, 507 S.W.2d 565 (Tex.Cr.App. 1973), affirmed the two convictions predicated on exhibits 13 and 14, finding that counsel failed to preserve error by interposing a hearsay objection to the admissibility of these two exhibits. As to exhibit 15, the Court found that counsel had made a proper hearsay objection and reversed this conviction, citing two recent state decisions handed down after Nelson's conviction, Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App. 1973) and Rodriquez v. State, 494 S.W.2d 864 (Tex.Cr.App. 1973). 2 After completing all avenues of available state remedies, Nelson sought federal habeas in March 1977, arguing that (i) trial counsel was ineffective due to his failure to properly object to the admission of State's exhibits 13 and 14, and (ii) that the admission of those exhibits denied Nelson his constitutional right to confront adverse witnesses. The Federal Magistrate denied relief concluding that Nelson had been afforded reasonably effective representation of counsel and had not demonstrated any actual prejudice suffered by the erroneous admission of exhibits 13, 14. 3

However, the District Court declined to follow that recommendation and held that "the failure of Nelson's trial counsel to preserve reversible error by objecting to the hearsay nature of the submission reports admitted into evidence ... actually prejudiced Nelson's defense and caused trial counsel's assistance to fall below the Sixth Amendment standard." This appeal followed and we are now required to determine whether appointed counsel's assistance was less than reasonably effective because he failed to preserve reversible error by objecting to the hearsay nature of two submission reports admitted into evidence. We are not required or even allowed to consider the evidentiary wisdom of the State of Texas in this issue. Unquestionably, federal habeas corpus is available only for the vindication of rights existing under federal law; not rights existing solely under the rules of state procedure. Butts v. Wainwright, 575 F.2d 576 (5th Cir. 1978); Loud v. Estelle, 556 F.2d 1326 (5th Cir. 1977); Pringle v. Beto, 424 F.2d 515 (5th Cir. 1970); Bilton v. Beto, 403 F.2d 664 (5th Cir. 1968); Beto v. Sykes, 360 F.2d 411 (5th Cir. 1966). Therefore, our duty is to determine whether there has been a constitutional infraction of defendant's due process rights which would render the trial as a whole "fundamentally unfair." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 436 (1974); Cobb v. Wainwright, 609 F.2d 754 (5th Cir. 1980); Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979); Gillihan v. Rodriguez, 551 F.2d 1182, cert. denied, 433 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977).

Sixth's Guarantees

The Sixth Amendment rights to counsel entitles the accused in a criminal proceeding to representation by an attorney reasonably likely to render and rendering reasonably effective assistance. See, e. g., Hill v. Wainwright, 617 F.2d 375 (5th Cir. 1980); Rummel v. Estelle, 590 F.2d 103 (5th Cir. 1979); Carbo v. United States, 581 F.2d 91 (5th Cir. 1978); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). Moreover, we have said that effective assistance is neither tantamount to errorless assistance, nor counsel judged ineffective by hindsight. Clark v. Blackburn, 619 F.2d 431 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980); MacKenna v. Ellis, 5 Cir., 280 F.2d 592, modified, 5 Cir., 289 F.2d 928, cert. denied, 368 U.S. 377, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). Rather, the methodology for applying the standard involves an inquiry into the actual performance of counsel conducting the defense and a determination of whether reasonably effective assistance was rendered based upon the totality of circumstances and the entire record. See, e. g., Lovett v. State of Florida, 627 F.2d 706 (5th Cir. 1980); United States v. Gray, 565 F.2d 881 (5th Cir. 1978); Lee v. Hopper, 499 F.2d 456 (5th Cir. 1974). It is within this framework of totality of circumstances that we judge the "fundamental fairness" of the trial and ultimately counsel's ineffectiveness.

In the present case, the record of state proceedings readily discloses that overall, Nelson's counsel rendered effective assistance by (i) filing meaningful pre-trial motions, (ii) cross-examining each of the state's witnesses rigorously and in a manner favorable to Nelson's apparent trial strategy, and (iii) making specific meaningful objections to testimony and exhibits. In closing argument, counsel artfully interwove defensive theories with specific references to areas of testimony and evidence in support of defendant's trial strategy. Thus, in its totality, counsel's assistance was more than reasonably effective. Yet, we are asked to consider counsel's single error which resulted in a violation of state law and a partial reversal of conviction, to be so prejudicial as to render the trial as a whole "fundamentally unfair". We cannot so hold.

Nelson relies heavily on the language found in Nero in support of his position. In that case, Nero's counsel failed to request a mistrial following improper prosecutorial comments of prior convictions. Counsel's ignorance of Louisiana statutory law caused a conviction when an automatic mistrial would have been granted if defense counsel had merely asked for one. This Court held that "(s)ometimes a single error is so substantial that it alone causes the attorney's assistance to fall below the Sixth Amendment standard." Nero, 597 F.2d at 994. Nevertheless, in cases where this Court has held counsel ineffective due to a single error, the basis of the error in and of itself was one of constitutional dimensions which the Court could have relied on alternatively as a basis for its holdings. For example, in Nero the admission of three extraneous offenses by the prosecution in closing, would clearly have been prejudicial enough to violate "fundamental fairness". See, e. g., Cobb v. Wainwright, 609 F.2d 754 (5th Cir. 1980). In Cooks v. United States, 461 F.2d 530 (5th Cir. 1972), counsel's misinforming his client concerning the maximum possible sentence the defendant could face, caused the defendant's guilty plea to be overturned based on ineffective assistance of counsel. The Court stated Where counsel has induced defendant to plead guilty on the patently erroneous advice that if he does not do so, he may be subject to a sentence six times more severe than that which the law would really allow, the proceeding surely fits the mold we describe as a 'farce and a mockery of justice'. 4

Cooks, 461 F.2d at 531. Once again, the single error in that case can be characterized as a constitutional violation of defendant's due process right to enter a plea knowingly and voluntarily. Similarly, in Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), counsel allowed his client knowingly and involuntarily to plead guilty to an armed robbery charge where the requisite element of intent permanently to deprive would have been impossible to prove by the State. 5 Thus, it is a fair inference from these examples, that this Court has never held counsel to be ineffective simply because of a single error that in and of itself did not impugn the defendant's constitutional rights which would render the trial "fundamentally unfair."

Two Types Of "Prejudice"

Neither do we accept Nelson's collateral argument that counsel's error was so prejudicial that it affected the jury's verdict and resulted in a violation of due process rights. Nelson relies on the authority of United States v. Ware, 247 F.2d 698 (7th Cir. 1957) and United States v. Brown, 451 F.2d 1231 (5th Cir. 1971) as illustrative of this contention. In Ware the Court reversed convictions where envelopes containing information similar to that in the instant case were received in evidence over objections and were ultimately sent to the jury room. The Court held that the writings were not admissible under the Business Records Act, 28 U.S.C.A. § 1732 or the Government Records Act, 28 U.S.C.A. § 1733, and their transmission to the jury room was prejudicial since "(t)he jury thus had before it a...

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