Burley v. Cabana
| Decision Date | 03 June 1987 |
| Docket Number | No. 86-4560,86-4560 |
| Citation | 818 F.2d 414 |
| Parties | Milton BURLEY, Petitioner-Appellee, v. Donald A. CABANA, Warden, and Mississippi State Penitentiary, Respondents- Appellants. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Donald Gary Barlow, Asst. Atty. Gen., Edwin L. Pittman, Atty. Gen., Jackson, Miss., for respondents-appellants.
Elizabeth A. Broome, Boyce Holleman, Gulfport, Miss., for petitioner-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.
The State of Mississippi appeals the district court's grant of Milton Burley's petition for a writ of habeas corpus. The district court ruled that Burley had been denied effective assistance of counsel because his counsel did not file a written motion of continuance, necessary to perfect that issue for appeal, and did not advise the trial court of sentencing options. We cannot sustain the ruling that counsel's failure to file a written motion of continuance and to advance the issue on appeal constituted ineffective assistance; there is no proof that any such error prejudiced Burley. We agree, however, that counsel's failure to inform the state trial court of sentencing alternatives constituted ineffective assistance of counsel and affirm the grant of relief, with modification.
On August 17, 1979, Milton Burley shot and killed Michael Bingham. According to Burley's testimony at trial, Burley was in his trailer listening to music with his brother and two friends when Bingham entered the trailer and sat down. After Bingham ignored Burley's repeated demands to leave, Burley picked up a shotgun. Burley broke the gun, showed Bingham that there was a shell inside, and instructed Bingham to leave. Burley then pulled the gun together, cocked the hammer, and again demanded that Bingham leave. Bingham eventually walked outside, but when Burley attempted to shut the door, Bingham jerked it back open. As Burley attempted to close the door again, the gun, which was down at Burley's side, discharged, killing Bingham.
On August 21, 1979, a Newton County, Mississippi, grand jury charged Burley with murder. Burley hired a lawyer, and his trial followed seven days later. This trial ended in a mistrial when the jury was unable to reach a verdict.
Burley was retried on September 4, 1979, and found guilty of murder. His counsel, who handled twelve other cases during this two-week period, failed to inform the trial court of its sentencing options under the Youth Court Act. The court sentenced Burley to life imprisonment, stating that this was the only possible sentence for this offense under Mississippi law. In denying Burley's motion for new trial, the judge again stated that he could impose no sentence other than life imprisonment. The Mississippi Supreme Court affirmed Burley's conviction.
In his federal habeas petition, Burley alleged that (1) the evidence was insufficient to support his conviction, (2) the jury instructions were deficient, and (3) he was denied effective assistance of counsel. The state filed an answer in opposition.
Burley, through court-appointed counsel, filed an amended petition alleging (1) the evidence was insufficient to support his conviction and (2) his counsel was ineffective at trial and on appeal. The state conceded that Burley had exhausted state remedies.
After an evidentiary hearing, the magistrate recommended that Burley's petition be granted because Burley's trial counsel was ineffective:
In summary, we hold that the due process rights of Milton Burley were violated by counsel's ineffectiveness in failing to move properly for a continuance and failing to raise the point on appeal. The other errors, particularly Henry's failure to research the law on possible sentencing alternatives, were caused, we find, by the lack of time for preparation. In review of the record as a whole, especially considering that, as the trial judge stated, the case was a very close one between murder and manslaughter, and that Burley was a minor at the time of the incident, we find that his trial was not fair and did not comport with this Court's notion of substantial justice.
The magistrate informed the parties that they had ten days to file objections to his report and warned them that their failure to file written objections would bar them from attacking his factual findings on appeal. The state did not file written objections.
Adopting the magistrate's report and recommendation, the district court ordered "that a writ of habeas corpus shall be issued for the release of Milton Burley from his present custody or that a new trial shall be had within ninety (90) days from this date." The State appeals.
The State argues that Burley received effective counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court stated:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
The magistrate held that Henry's representation was deficient because he did not preserve this issue for appellate review by filing a written motion for continuance pursuant to Miss.Code Ann. Sec. 99-15-29. The magistrate held that not preserving the point prejudiced Burley because if a proper motion had been filed, even if the trial court denied the motion, the Mississippi Supreme Court, based on its precedent, would have held that the trial court abused its discretion. The magistrate concluded that trial counsel made a number of errors that could have been avoided had the motion for continuance been granted; that "[a] latter-day, indefatigable Clarence Darrow's representation would be suspect in a similar context." We disagree.
Determining that the state trial court would have granted the motion for continuance or that the Mississippi Supreme Court would have found that the trial court abused its discretion if the trial court had denied the motion does not satisfy the prejudice prong of Strickland. To demonstrate prejudice, Burley also must show a reasonable probability that effective counsel would have been able to utilize the extra time gained by the continuance to present additional evidence that would have affected the outcome of Burley's case. Burley has not made this showing. The only issue in this case was whether Burley killed Bingham accidentally or with malice aforethought. The state presented five witnesses: a driver who saw Burley and Bingham outside the trailer and who heard the shot, the investigating officer, the ambulance driver, the embalmer, and one of Burley's guests at the trailer at the time of the shooting. Burley's counsel testified that he talked with the officer who investigated the crime and the four other persons that were in Burley's trailer at the time of the shooting. He also testified that he examined the crime scene, that he decided not to request an expert to testify about the angle of the shot because it was not disputed, and that he investigated possible statements that Burley and other witnesses might have given police. Finally, Henry testified that he thought the hung jury in the first trial, in which the state disclosed its case, mooted the issue.
The magistrate, nevertheless, found prejudice, concluding that the shortness of time
prohibited any discovery in the case. Henry did not obtain any statements which may have been made to police, and got no exculpatory information they may have had.
However, Burley did not show that any exculpatory evidence existed, that any defense which could have been raised was not, or that any witness who was not called could have added to the defense. Burley points to his trial counsel's testimony to support his prejudice claim:
Q. What witnesses are you aware of now that might have been available to you that were not...
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