Schwander v. Blackburn

• Decision Date: 17 January 1985
• Docket Number: No. 84-3444,84-3444
• Citation: 750 F.2d 494
• Parties: Peter James SCHWANDER, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William J. Custe, Jr., Attorney General of the State of Louisiana, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 494

750 F.2d 494

Peter James SCHWANDER, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William J. Custe, Jr., Attorney General of the

State of Louisiana, Respondents-Appellees.

No. 84-3444

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 17, 1985.

Peter James Schwander, pro se.

Elizabeth M. Gaudin, Dorothy A. Pendergast, Asst. Dist. Attys., Research & Appeals, Gretna, La., for respondents-appellees.

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

Before WILLIAMS, JOLLY, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

A state prisoner appeals from the district court's order denying his petition for habeas corpus relief. He argues that an incomplete trial transcript denied him a meaningful state court appeal and that he was denied effective assistance of counsel at trial and on appeal. For the reasons that follow, we affirm the order of the district court denying habeas corpus relief.

I. Procedural Background

Petitioner-Appellant, Peter James Schwander (Schwander), is in custody at the Louisiana State Penitentiary at Angola. He and a co-defendant, Deborah Venezia (Venezia), were charged with the June 24, 1974, aggravated robbery of Lloyd Russell. At trial Schwander was represented by Pierre F. Gaudin and Venezia was represented by David Smill. A jury found them both guilty and sentenced Schwander to thirty years imprisonment. On direct appeal, allowed out-of-time, the Louisiana Supreme Court affirmed Schwander's conviction but reversed Venezia's conviction. State v. Schwander, 345 So.2d 1173 (La.1977).

Schwander has filed four habeas petitions in the state courts. In each petition, relief was denied. In his second state petition, Schwander was represented by appointed counsel, Alan J. Boudreaux, who also represented him in his later out-of-time direct appeal. Also in the second petition Schwander received a full evidentiary hearing at which testimony was presented on the issue of ineffective assistance of counsel at trial. The state court judge denied relief in open court with reasons. In 1979, the Louisiana Supreme Court denied the writs, without reasons. State ex rel. Schwander v. Blackburn, 366 So.2d 916 (La.1979).

Schwander filed the present pro se petition in federal district court seeking federal habeas relief under 28 U.S.C. Sec. 2254. He alleged four grounds for relief: (1) an incomplete trial transcript denied him a meaningful state court appeal; (2) the suggestiveness of his pre-trial photo identification; (3) prejudice from a state witness's reference to a prior offense; and (4) ineffective assistance of counsel at trial and on appeal. The state expressly waived the requirement of exhaustion of state court remedies. See McGee v. Estelle, 722 F.2d 1206, 1212 (5th Cir.1984) (en banc). The district court honored the state's waiver, considered the merits of Schwander's petition and denied relief without holding an evidentiary hearing. Schwander's notice of appeal is timely. Because Schwander has not pressed his second and third grounds on appeal, this Court deems them abandoned. Baker v. Estelle, 711 F.2d 44, 45 (5th Cir.1983) (per curiam), cert. denied, --- U.S. ----, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984). Further, since Schwander included in his brief a motion for appointment of counsel, both his motion and his appeal of the denial of habeas relief are before this Court.

II. Grounds for Relief

1. Meaningful Appeal

Schwander's first contention on appeal is that omissions from the trial transcript deprived him of the right to a meaningful appeal. Schwander argues specifically that the omission from the trial transcript of the jury voir dire, opening and closing statements of counsel, jury instructions and additional jury questions meant that a "substantial portion of the trial record" was unavailable for review by Schwander's attorney on appeal. ¹ State v. Ford, 338 So.2d 107, 110 (La.1976). Therefore, Schwander argues that under Ford and under Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), his right of appellate review was "rendered meaningless." Ford, 338 So.2d at 110. The state, however, argues that Schwander has no right to a verbatim transcript, but is entitled only to a record of "sufficient completeness" to allow him to present his claims on appeal. Since the only error assigned on appeal with respect to Schwander was the denial of his motion for a mistrial based on improper witness testimony, we find the record was sufficient for the purposes of his appeal. See Mack v. Walker, 372 F.2d 170, 172 (5th Cir.1966), cert. denied, 393 U.S. 1030, 89 S.Ct. 641, 21 L.Ed.2d 573 (1969).

In State v. Francis, 345 So.2d 1120, 1124-25 (La.), cert. denied, 434 U.S. 891, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977), the Louisiana Supreme Court specifically rejected an argument similar to the one Schwander advances here--that omission from the appellate record of the voir dire, the district attorney's opening statement, the closing arguments and the jury charge warranted reversal. In Francis, there was a certificate by the court reporter in the record which stated that "no objections were noted by counsel for the defense" during any of these portions of the trial. Id. at 1124. The court held that, since its review is restricted to questions of law based on defense objections and assignments of error, the record before it was "adequate for full appellate review." Id. at 1125 (citing La. Const. Art. 5, Sec. 5(C) (1974) and La.Code Crim.Proc.Ann. art. 841 (West 1974)). The court then concluded that "the holding in State v. Ford ... is inapplicable here." Francis, supra, at 1125. Similarly, we find State v. Ford inapplicable to the facts of this case. The trial transcript before the Louisiana appellate court was certainly adequate for review of the sole error assigned on appeal.

Schwander's reliance on Ford 's progeny is misplaced. In the Louisiana cases following Ford, retrial has been limited to cases in which witness testimony that is material to the errors alleged on appeal has not been recorded or transcribed. See State v. Robinson, 387 So.2d 1143, 1144-45 (La.1980) (testimony of two expert witnesses); State v. Thetford, 445 So.2d 128, 129 (La.App. 3d Cir.1984) (testimony of two alibi witnesses and cross-examination of state witnesses); see State v. Vaughn, 378 So.2d 905, 910-11 (La.1979) (missing witness testimony immaterial to adequate review is not grounds for reversal). Schwander makes no allegation that any witness testimony was omitted from the transcript. Accordingly, the cases he relies upon that follow Ford are inapplicable.

Nor does Schwander contend that the omitted portions of the transcript contain any additional error. The minutes of the deputy clerk covering the voir dire examination, opening and closing statements, and the jury charge do not indicate that attorney Gaudin made any objections during these portions of the trial. In addition, Gaudin testified that Schwander made no comments "out of the ordinary" to him during the voir dire of the jurors. While the record before us is not quite so clear as the records in State v. Goodbier, 367 So.2d 356, 357 (La.1979) (affidavits by court reporter and trial counsel stated no objections made by defense during voir dire) and State v. Francis, 345 So.2d at 1145 (court reporter's certificate noted no objections were made by counsel at the parts of trial omitted from the transcript), we note that Schwander is unable "to indicate one specific error committed during the portions of trial not included in the record." Cf. United States v. Renton, 700 F.2d 154, 159 (5th Cir.1983) (a direct criminal appeal). As a result, we agree with the district court that the omitted phases of the trial transcript are immaterial to the error alleged by Schwander on direct appeal. The record was adequate for full appellate review; consequently, Schwander was not denied a meaningful appeal.

2. Ineffective Counsel

a. At Trial

Schwander urges that he had ineffective assistance of trial counsel, based on five alleged deficiencies in Gaudin's performance. ² The state court held a hearing on the merits of the ineffectiveness claim at which Schwander, Gaudin, Smill, and the district attorney testified. The state court denied relief in open court with reasons. Where a state court has held a hearing on the merits of the claim presented, the rule is that the findings of fact by the state court are entitled to a presumption of correctness, unless a petitioner establishes one of the eight exceptions to the rule. 28 U.S.C. Sec. 2254(d); Byrd v. McKaskle, 733 F.2d 1133, 1138 (5th Cir.1984). Though the ultimate conclusion that counsel was effective is not a finding of fact subject to the Sec. 2254(d) presumption, the underlying findings of fact made in the course of deciding the ineffectiveness claim are subject to the presumption of correctness. Strickland, --- U.S. at ----, 104 S.Ct. at 2070. Thus, since the state court made findings adverse to Schwander with respect to the first four grounds alleged in his ineffectiveness claim, those subsidiary findings are entitled to the Sec. 2254(d) presumption of correctness. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). Schwander bears the burden of proving by convincing evidence that the factual determinations by the state court were erroneous. 28 U.S.C. Sec. 2254(d).

In describing the analysis of the prejudice component of an ineffectiveness claim, the Supreme Court in Strickland stated that "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, --- U.S. at ----, 104 S.Ct. at 2069. In addition, in assessing the impact of the alleged errors on the verdict at trial, a court must consider the totality of the evidence presented at trial, since "a verdict ... only weakly...