Code v. Montgomery, 85-8273

• Decision Date: 22 September 1986
• Docket Number: No. 85-8273,85-8273
• Citation: 799 F.2d 1481
• Parties: Joseph CODE, Petitioner-Appellant, v. Charles M. MONTGOMERY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1481

799 F.2d 1481

Joseph CODE, Petitioner-Appellant, v. Charles M. MONTGOMERY, Respondent-Appellee.

No. 85-8273.

United States Court of Appeals Eleventh Circuit.

Sept. 22, 1986.

John Dean Marshall, Jr., Atlanta, Ga. (Court-appointed), for petitioner-appellant.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

CORRECTED OPINION

KRAVITCH, Circuit Judge:

Joseph Code appeals the district court's denial of habeas corpus relief. Because we conclude that Code received ineffective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we reverse and remand.

I. BACKGROUND

In 1976, Code was convicted in state court of an armed robbery that had occurred two and a half years earlier at a residence near Bainbridge, Georgia. ¹ While incarcerated in Macon on an unrelated charge, Code received three weeks' notice of his impending trial in Bainbridge for the armed robbery offense. He was transferred to Bainbridge one week before the trial. Code steadfastly maintained that he had never before set foot in the Bainbridge area. On Friday, December 10, 1976, three days prior to trial, Code first met George Stacy, his court appointed counsel. ² Stacy's trial preparation primarily consisted of calling Code's mother and suggesting that she attend the upcoming trial. On Monday, December 13, 1976, Code was tried despite his protests that his attorney was unprepared. When no witnesses, other than the defendant, appeared on Code's behalf, his attorney failed to move for a continuance. Although Code's sole defense was an alibi, at trial Stacy never asked Code where he was on the day of the robbery.

Code's first state habeas petition was dismissed because he had escaped custody. It was refiled and relief was denied. He filed a federal habeas corpus petition which the district court denied. This court, however, remanded for an evidentiary hearing on Code's ineffective assistance of counsel claim. Code v. Montgomery, 725 F.2d 1316 (11th Cir.1984). ³

In his evidentiary hearing in the federal district court, Code presented alibi testimony placing him in Macon throughout the day of the crime. The district court specifically rejected Code's assertions that he told Stacy that he had been at an April Fool's Day party at the Central Hotel in Macon on the day of the robbery and that Estella Taylor, a co-worker, would so testify. ⁴ Accordingly, the district court denied Code's ineffective assistance claim.

II. ANALYSIS

In this appeal, Code continues to assert that he was denied a fair trial due to the ineffective assistance of counsel rendered by Stacy. To prevail on an ineffective assistance of counsel claim, a habeas corpus petitioner must show that (1) his attorney's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland, 104 S.Ct. at 2064. Accordingly, we first inquire as to "the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 104 S.Ct. at 2066. If counsel erred, we next inquire whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 104 S.Ct. at 2068. A petitioner need not show that but for counsel's errors, the outcome of the proceeding would more likely than not have been different: "[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., see also Nix v. Whiteside, --- U.S. ---, 106 S.Ct. 988, 999, 89 L.Ed.2d 123 (1986). The " 'benchmark' of an ineffective assistance claim is the fairness of the adversary proceeding." Nix, 106 S.Ct. at 999.

Code alleges two specific instances of ineffective assistance: inadequate pretrial investigation and failure to request a continuance.

A. Pretrial Investigation

1. Attorney Performance

Undisputed facts establish that Code's counsel's performance fell below established competency standards. Attorney Stacy interviewed one defense witness: he telephoned Code's mother. He attempted to phone Code's girl friend, Mary Jackson, and testified that he "might have" interviewed one of the five prosecution witnesses. Although he knew that Code's exclusive defense was based on an alibi, Stacy never asked Code's mother where Code was on April 1, 1974, the day of the robbery. Had he asked, he would have learned that although Code's mother had no personal knowledge of Code's whereabouts on April 1, she could have provided him with leads regarding alibi witnesses. ⁵ Moreover, during the phone conversation, Code's mother indicated she could not attend Code's trial that coming Monday. Stacy made no attempt to subpoena her even though she was the only potential defense witness with whom he spoke and he erroneously believed she could provide Code's alibi. Instead, he suggested to Code, who was incarcerated, that Code secure his mother's presence at trial.

In his deposition in the district court, Stacy testified that he didn't think it necessary to go to Macon to locate Code's girl friend or other alibi witnesses or to ensure Mrs. Code's presence at trial: "I just don't think I'm required as a practicing attorney to be a taxi boy." Stacy also testified that due to a personality clash, he had to "swallow his pride" in order to represent Code.

The adequacy of a pretrial investigation turns on the complexity of the case and trial strategy. Washington v. Strickland, 693 F.2d 1243, 1251 (11th Cir.1982) (en banc), rev'd on other grounds, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here there was only one strategy: an alibi defense. By not inquiring as to Code's whereabouts on the day of the robbery, Stacy's investigation was inadequate. See Nealy v. Cabana, 764 F.2d 1173 (5th Cir.1985); Gomez v. Beto, 462 F.2d 596, 597 (5th Cir.1972) (failure to investigate sole defense; failure to subpoena requested alibi witnesses established ineffectiveness); cf. Aldrich v. Wainwright, 777 F.2d 630, 637 (11th Cir.1985) (failure to conduct meaningful pretrial investigation satisfies first prong of Strickland test).

Under these circumstances we conclude that a competent attorney relying on an alibi defense would have asked Code's mother if she could corroborate the alibi; would have subpoenaed a reluctant witness whom he thought could provide an alibi and would have asked either the witness or the defendant if there were other alibi witnesses. ⁶ Moreover, a reasonably effective attorney would have broadened his investigation once Mrs. Code indicated she was unavailable to testify. Even if Mrs. Code had appeared, Stacy had not investigated to the point where he would have discovered that she was not an alibi witness. See United States v. Moore, 554 F.2d 1086, 1093 (D.C.Cir.1976) ("counsel's anticipation of what a potential witness would say does not excuse the failure to find out"). Strickland embraced this court's prior ineffective assistance analysis to the extent that:

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.

104 S.Ct. at 2066. Here, Stacy did not contact both of the alibi leads Code had provided him. Stacy's limitation on his pretrial investigation is wholly unsupported by reasonable professional judgment: although his sole strategy was to present an alibi defense, he terminated his investigation without determining whether the one witness he contacted could provide an alibi. In short, Stacy attempted to present an alibi defense with no alibi witnesses.

2. Prejudice

As in Nealy, where prejudice was established, Code's trial was a mere swearing match. In Nealy, the defendant claimed an alibi, although the prosecution's witness claimed he and the defendant acted as accomplices. As in Nealy, Code argues that the testimony of an alibi witness "might have affected" the jury's comparison of the alleged accomplice's testimony with the defendant's. Nealy, 764 F.2d at 1174. The state distinguishes Nealy arguing that because two victims identified Code, the jury did not have to rely solely on a credibility choice between Code and his alleged accomplice. Accordingly, unlike Nealy, it is less certain that alibi witnesses might have swayed the jury. Nonetheless, Code's defense was sufficiently prejudiced by Stacy's ineffectiveness to the extent that our "confidence in the [trial] outcome" is undermined. Strickland, 104 S.Ct. at 2068.

Code was tried in December, 1976 for a robbery that occurred in April 1974. The state's case primarily entailed the testimony of the three victims and an alleged accomplice. Although they had only seen the robber during the course of a robbery that occurred two and a half years earlier, two of the victims identified Code. ⁷ We do not determine whether, despite the eyewitness testimony, alibi testimony would have resulted in Code's acquittal. See Strickland, 104 S.Ct. at 2068 (rejecting outcome determinative test for evaluating ineffective assistance claims). We conclude that, in this case, Stacy's failure to adequately investigate and present Code's alibi defense deprived Code of a fundamentally fair trial. See id. at 2071. The state correctly points out that Code's case is distinguishable from Nealy in that here the jury could have rejected the alleged accomplice's testimony and still have convicted. Code's case and Nealy are identical, however, in a more important regard: in both cases appointed counsel's shortcomings effectively deprived defendants of any defense whatsoever. Failure to conduct a pretrial...