Armstead v. Maggio, s. 82-3739

Citation720 F.2d 894
Decision Date09 December 1983
Docket NumberNos. 82-3739,82-3751,s. 82-3739
PartiesMilton ARMSTEAD, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Respondent-Appellee. Rubin TACKNO, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Respondent-Appellee. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Reuben Tackno, pro se.

Milton Armstead, pro se.

William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

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

Before GEE, POLITZ and JOHNSON, Circuit Judges.

PER CURIAM:

Appellants Milton Armstead and Rubin Tackno stand convicted of armed robbery and are serving thirty-three year sentences in the Louisiana State Penitentiary in Angola, Louisiana. Their convictions were affirmed on direct appeal by the Louisiana Supreme Court, State v. Tackno, 345 So.2d 46 (La.1977), and state habeas corpus relief has been denied. Appellants filed the instant 28 U.S.C. Sec. 2254 action in federal district court, alleging that they received ineffective assistance of counsel, that they were deprived of due process at the motion to suppress hearing prior to their state armed robbery trial, and that the state district court abused its discretion by refusing to grant a new trial on the basis of newly discovered evidence. We affirm the district court's denial of habeas corpus relief.

On April 11, 1975, the appellants, along with two females, abducted Steven Eckerle and took him to an apartment in New Orleans. Once at the apartment, the appellants robbed the victim at knifepoint and tied him up. After the appellants had left the apartment, the victim escaped and went immediately to the New Orleans police station.

With the police, the victim returned to the apartment and showed the police where the robbery had occurred. The police found identification papers of the appellants at that location and they proceeded to obtain photographs of the appellants to conduct a lineup. In the photographic lineup, the victim positively identified appellants as the robbers, and after the appellants were arrested, the victim was shown a second lineup array with more recent photographs of appellants, and he again positively identified appellants as the robbers. At appellants' apartment, the police recovered the weapon used, a knife, and the belt used to tie up the victim. After considering all of the above evidence, a jury found appellants guilty as charged of armed robbery. Both appellants were found to be second-time felony offenders and were adjudged to be multiple offenders according to LSA-R.S. 15:529.1. Whereupon, the trial court sentenced them to a term of thirty-three years imprisonment--the minimum according to the enhancement statute.

Initially, appellants contend that their court-appointed counsel rendered ineffective assistance. They fault court-appointed counsel for (1) lack of adequate consultation; (2) failure to subpoena an alibi witness, Lydia Alexander; and (3) failure to subpoena Armstead's cousin, Nelson Johnson, to testify at the hearing to suppress identification, or at trial, or to have the trial continued. Appellants allege that Ms. Alexander could have testified that they were having dinner with her at her home when the robbery occurred, and that through Johnson's testimony, it could have been shown that he, not appellants, committed the robbery. They further allege that failure to call these witnesses at the identification suppression hearing rendered that hearing unfair and deprived them of due process. These charges were fully explored at the evidentiary hearing conducted by the state habeas corpus court, which denied habeas corpus relief.

In a federal habeas corpus proceeding there is a statutory presumption of correctness that is attached to a state court's findings of fact after a post-conviction hearing has been held on the merits of the issue. See 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Although no written state court findings exist in this case, the Supreme Court has held that federal courts must give appropriate deference to implicit findings of a state habeas corpus court on credibility decisions when the state court conducts a hearing and enters a judgment from which findings of fact may be inferred. Marshall v. Lonberger, --- U.S. ----, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983). Of course, whether a defendant has received ineffective assistance of counsel is a mixed question of fact and law. While findings of basic, historical fact made after an evidentiary hearing are subject to review under the clearly erroneous standard of Rule 52(a), the district court's ultimate conclusion as to whether the defendant enjoyed effective assistance of counsel is not subject to review under that standard, and this Court must make an independent evaluation based on those subsidiary findings in determining whether counsel's representation satisfied the standards dictated by the sixth and fourteenth amendments. See Washington v. Watkins, 655 F.2d 1346, 1354 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982); Vela v. Estelle, 708 F.2d 954 (5th Cir.1983).

At the state habeas corpus hearing on October 16, 1979, court-appointed counsel testified that he had tried to locate Nelson Johnson prior to trial, but that no one, including Johnson's employers, knew how to reach him, since Johnson was trying to evade testifying. Court-appointed counsel stated that he could not, with good conscience, request a continuance because he had no way of knowing whether he could...

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28 cases
  • Jensen v. Hernandez, No. CIV S-09-0512 DAD P
    • United States
    • U.S. District Court — Eastern District of California
    • March 30, 2012
    ...in most cases, the recantation of trial testimony, in and of itself, has been found not to merit habeas relief. See Armstead v. Maggio, 720 F.2d 894, 896-97 (5th Cir.1983) (affidavit of another person confessing to the crime); Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir. 1977) (recantati......
  • Kirkpatrick v. Blackburn
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • December 3, 1984
    ...findings of fact in a subsequent federal habeas corpus proceeding. Walker v. Maggio, 738 F.2d 714, 717 (5th Cir.1984); Armstead v. Maggio, Infra, 720 F.2d at 895-96; see 28 U.S.C. § 2254(d). Therefore, unless the state court hearing was inadequate under the circumstances or the findings of ......
  • Jensen v. Hernandez
    • United States
    • U.S. District Court — Eastern District of California
    • March 30, 2012
    ...in most cases, the recantation of trial testimony, in and of itself, has been found not to merit habeas relief. See Armstead v. Maggio, 720 F.2d 894, 896–97 (5th Cir.1983) (affidavit of another person confessing to the crime); Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir.1977) (recantatio......
  • Cantu v. Collins
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 22, 1992
    ...459 U.S. 422, 433-34, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983); McCoy v. Cabana, 794 F.2d 177, 182 (5th Cir.1986); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983). Thus, for instance, the state court, after weighing the evidence, found that Juan Moreno had sufficient opportunity to......
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