Baldwin v. Blackburn, 81-3249

• Decision Date: 14 August 1981
• Docket Number: No. 81-3249,81-3249
• Citation: 653 F.2d 942
• Parties: Timothy George BALDWIN, Petitioner-Appellant, v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 942

653 F.2d 942

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

of Louisiana, Respondents-Appellees.

No. 81-3249.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 14, 1981.

Calvin Johnson, Dwight Doskey, New Orleans, La., for petitioner-appellant.

John Harrison, Asst. Dist. Atty., Lavalle B. Salomon, Monroe, La., for respondents-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, GEE and POLITZ, Circuit Judges.

GEE, Circuit Judge:

The facts in this case, as elaborated by the Louisiana Supreme Court on direct appeal, State v. Baldwin, 388 So.2d 664, 669 (La.1980), are not in dispute.

Facts

Timothy Baldwin, his wife Rita, and their seven children were neighbors of Mary James Peters in West Monroe, Louisiana, from 1971 until 1977. Mrs. Peters was godmother to their youngest, Russell. During the latter part of their stay in West Monroe, William Odell Jones also resided with the Baldwins. The group went to Bossier City for six months and then moved to Ohio. The oldest daughter, Michelle, remained in West Monroe with one brother. A second son entered the service. Marilyn Hampton and her three daughters stayed with the Baldwins in Ohio. Marilyn, Timothy Baldwin, and her children then left, accompanied by Jones. Baldwin and Jones worked together in the business of installing aluminum siding. After the departure of her husband, Rita Baldwin got in financial difficulties and was picked up on bad check charges. Her four younger children went to live with Michelle in West Monroe. Meanwhile, Timothy Baldwin, Jones, Marilyn Hampton and her three children led an itinerant existence. Their last means of transportation was a 1978 black Ford van, rented in Tampa, Florida.

On April 4, 1978, Marilyn Hampton and Timothy Baldwin drove the van to West Monroe. Jones and the children stayed at a cabin in Holmes State Park, near Jackson, Mississippi. Baldwin and Marilyn Hampton visited Michelle's apartment in West Monroe but left there around 8:00 p. m. Shortly thereafter, a van was seen parked in front of Mrs. Peters' house. A man and woman were observed leaving the residence between 10:00 and 11:00 p. m. Shortly before their departure, passersby saw and heard indications that someone in the Peters' home was being beaten. Baldwin testified in his own behalf and admitted that he and Marilyn visited Mrs. Peters that evening but denied the murder. Mrs. Peters, who was 85 years old, was beaten with various things, among them a skillet, a stool, and a telephone. She remained on the kitchen floor overnight and was discovered the next morning shortly before noon by an employee of the Ouachita Council Meals on Wheels, who was bringing her noon meal. Although helpless and incoherent, Mrs. Peters tried to defend herself against the police officers and the ambulance attendant who took her to the hospital. Dr. A. B. Gregory saw her in the emergency room around 12:30 p. m. on April 5, 1978, and found her semi-comatose. Her left cheekbone and jawbone were shattered; she had brain damage from multiple contusions and lacerations. According to Dr. Gregory, Mrs. Peters could not communicate rationally. She died of the injuries the following day. Dr. Frank Chin, who performed the autopsy, attributed her death to massive cerebral hemorrhage and swelling, secondary to external head injuries.

Timothy Baldwin and Marilyn Hampton were subsequently located in El Dorado, Arkansas. Timothy Baldwin signed consents for the search of their motel room and the van. Two blue bank bags, one empty and one containing savings bonds and certificates of deposit payable to Mary James, were found in the van. ¹ Jones, to whom Marilyn Hampton and Timothy Baldwin had made inculpatory statements both before and after the crime, helped police officers locate a safe that had belonged to the victim in the LaFourche Canal in West Monroe. Baldwin's finger and palm prints were found on various items in the Peters' home: a cigarette lighter, a television set, and a coffee cup.

Baldwin was found guilty, and the jury recommended the death sentence, finding two aggravating circumstances: "1. the offender was engaged in the perpetration or attempted perpetration of an armed robbery (appellant had a knife on his person) and 2. the offense was committed in an especially heinous, atrocious or cruel manner." The Louisiana Supreme Court affirmed the conviction and denied rehearing. The United States Supreme Court denied certiorari on January 12, 1981. Baldwin v. Louisiana, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981). Appellant's execution was scheduled for March 31, 1981. He then sought post-conviction relief, which was denied for lack of jurisdiction by the state district court on March 26, 1981, and denied by the Louisiana Supreme Court without written reasons on March 27, 1981. Appellant immediately filed a petition for writ of habeas corpus in federal district court and was granted a stay of execution on March 27, 1981. The district court denied relief without an evidentiary hearing and ordered the stay dissolved as of May 4, 1981.

Denial of Effective Counsel

Appellant asserts that the district court erred in finding, without holding an evidentiary hearing, that trial counsel was not ineffective. This issue was not raised on direct appeal but was raised in appellant's state petitions for post-conviction relief and denied without a hearing. Appellant first argues that counsel was ineffective for failing to pursue a consistent defense strategy, asserting that counsel's questioning on voir dire evidenced an intent to pursue an intoxication defense, which was not developed at trial and was abandoned in the jury charge.

Before trial, counsel moved to change the plea to guilty by reason of insanity based in part on appellant's heavy drinking. See State v. Baldwin, 388 So.2d at 670. Counsel questioned prospective jurors about their understanding of the concept of specific intent and their feelings about alcohol consumption. Counsel's opening and closing remarks are not included in the transcript, and their content is unknown; but appellant did cross-examine two state witnesses about their knowledge of appellant's increasing use of alcohol over the years and his extensive drinking on the day of the murder. Appellant's wife was called to testify about his increasing use of alcohol, and appellant testified at length about his drinking on the day of the murder. On cross-examination, appellant admitted that, although drunk, he was fully conscious of his activities on the night of the murder. Counsel subsequently agreed to deletion of the intoxication defense from the jury charge. Counsel then argued on motion for new trial that appellant's mental state or intoxicated condition precluded specific intent. See id. at 676. As the state asserts, appellant also defended on the theory that he had visited in the victim's home but left without committing the murder.

The Sixth Amendment entitles a criminal defendant to counsel reasonably likely to render and rendering reasonably effective assistance. Effective assistance is not tantamount to errorless assistance or counsel judged ineffective by hindsight. The methodology for applying the standard involves an inquiry into the actual performance of counsel and a determination based on the totality of the circumstances and the entire record. Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981). "Informed evaluation of potential defenses to criminal charges and meaningful discussion with one's client of the realities of his case are cornerstones of effective assistance of counsel." Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978). But tactical decisions do not render assistance ineffective simply because in retrospect it is apparent that counsel chose the wrong course. Beckham v. Wainwright, 639 F.2d 262, 265 (5th Cir. 1981).

The district court below considered "the evidence, the character of the defendant, and the circumstances of the crime." It noted that Baldwin had been represented by two experienced criminal lawyers who engaged in three months of pretrial preparation, numerous substantive motions, a five-day trial, and extensive post-trial litigation. The district court found counsel reasonable effective and refused to scrutinize counsel's decision not to develop further the intoxication defense. We conclude that it was not error for the district court to deny an evidentiary hearing while finding that counsel's assistance at trial had been effective. This court has remanded for an evidentiary hearing when it could not conclusively determine from the record the accuracy of a petitioner's allegations of ineffective assistance. See Clark v. Blackburn, 619 F.2d 431, 432 (5th Cir. 1980). "The district court should hold a full hearing on any issues not resolved because of an insufficient record." Id. at 434. Here appellant does not raise allegations that require reference outside the record. Compare Harris v. Oliver, 645 F.2d 327, 331 (5th Cir. 1981) (record presented sharp conflicts of evidence requiring credibility choices), with Williams v. Blackburn, 649 F.2d 1019 (5th Cir. 1981) (evidentiary hearing unnecessary since district court had full record).

Where a petitioner can point to specific incidents of ineffectiveness, this circuit does not hesitate to grant a new trial or a hearing, but it does not blindly accept speculative and inconcrete claims. United States v. Gray, 565 F.2d 881, 887 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). Here appellant has failed to produce evidence to support a federal constitutional deprivation. The burden of proof is on the petitioner in a habeas corpus proceeding. Jones v. Estelle, 632 F.2d 490, 492 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1992, 68 L.Ed.2d 307 (...