Ballard v. Blackburn

• Decision Date: 02 November 1978
• Docket Number: No. 77-3339,77-3339
• Citation: 583 F.2d 159
• Parties: Clarence BALLARD, Petitioner-Appellant, v. Frank BLACKBURN, Jr., etc., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 159

583 F.2d 159

Clarence BALLARD, Petitioner-Appellant, v. Frank BLACKBURN, Jr., etc., Respondent-Appellee.

No. 77-3339.

United States Court of Appeals Fifth Circuit.

Nov. 2, 1978.

George M. Strickler, Jr., New Orleans, La., Paul H. Kidd, Monroe, La., for petitioner-appellant.

Marilyn Castle, Asst. Dist. Atty., Ossie B. Brown, Dist. Atty., Baton Rouge, La., William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, La., for respondent-appellee.

Appeal from the United States District Court For the Middle District of Louisiana.

Before RONEY, RUBIN and VANCE, Circuit Judges.

VANCE, Circuit Judge:

This is the second appeal from a denial of a petition for a writ of habeas corpus, filed by Clarence Ballard, an inmate at the Louisiana State Penitentiary at Angola, Louisiana.

Petitioner had been indicted for murder in the state courts in the Parish of East Baton Rouge, Louisiana. He was represented by retained counsel and entered a plea of guilty to a reduced charge of manslaughter. Prior to being sentenced, he retained new counsel and filed a motion to withdraw his guilty plea. The motion was denied by the state district court and petitioner was sentenced to 21 years. The sentence was ordered to run consecutive to a life sentence petitioner had received on a prior murder charge and in connection with which he had been on parole. The denial of the motion to withdraw the plea of guilty was affirmed by the Louisiana Supreme Court. State v. Ballard, 282 So.2d 448 (La.1973). Petitioner sought a writ of habeas corpus in the state district court which was denied without an evidentiary hearing. No appeal to the Louisiana Supreme Court was taken.

Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Louisiana, alleging (1) denial of due process of law due to the refusal by the state court to allow petitioner to withdraw his plea of guilty, and (2) ineffective assistance of counsel in violation of the sixth and fourteenth amendments. The district court denied the petition, reasoning that the state court correctly found that the guilty plea was voluntary and that the petitioner had not exhausted his state court remedies as to his claim of ineffective assistance of counsel.

On the initial appeal another panel of this court reversed the district court and held that petitioner had sufficiently exhausted available state remedies as to his ineffective counsel claim. The case was remanded

to the district court for a full evidentiary hearing to determine, within Fitzgerald's (Fitzgerald v. Estelle, 5 Cir., 1975, 505 F.2d 1334) perimeters, whether Ballard's counsel was so inadequate that his guilty plea was not voluntary and sufficiently implicated state representatives such as the state prosecutor, trial judge, or both, so as to constitute state action or whether, absent state action triggering the Sixth Amendment, he was thereby denied the right to due process of law.

Ballard v. Maggio, 544 F.2d 1247, 1251 (5th Cir. 1977). Following remand, the United States Magistrate conducted a full hearing. The district court adopted the findings of the magistrate and again denied the petition. This appeal followed.

The record discloses that on July 29, 1972, Clarence Ballard shot and killed Sherman Jerome Stanley outside Bank's Restaurant in Baton Rouge, Louisiana. Shortly thereafter, Ballard retained Nathan Fisher to represent him on this charge. At the time he killed Stanley, Ballard was on parole from a 1963 murder conviction. A detainer was placed on Ballard by the Probation and Parole Division of the Louisiana Department of Corrections, and a preliminary hearing on his parole revocation was set for August 14, 1972.

Fisher arranged to have the detainer filed by Probation and Parole lifted and to have the revocation hearing postponed until after the disposition of petitioner's pending charges. Fisher also immediately sought to obtain petitioner's release on bond. A motion to set bond was filed and was set for hearing on August 17, 1972, but was later continued until August 24, 1972. On August 24, 1972 bond was set at $10,000.

At his initial meeting with Ballard, Fisher obtained a statement and the name of two persons who Ballard said were witnesses to the incident.

Fisher proceeded to conduct an investigation of Ballard's case, which included interviewing one witness, examining the district attorney's file, listening to a taped statement made by another witness, examining evidence that had been sent to the crime lab, and reading written statements taken from other witnesses.

Ballard was present in court on October 4, 1972, along with his attorney. He was arraigned on the murder charge and entered a plea of not guilty. On October 25, 1972, a pretrial conference was held at which the assistant district attorney, the trial judge and Fisher were present. A trial date of January 22, 1973 was set at that time. On January 22, 1973, the case was continued until the next day. On January 23, 1973, the petitioner entered a plea of guilty to the lesser offense of manslaughter.

The first inquiry for which the case was remanded concerned whether the claimed inadequacy of counsel involved state action. Mr. Ballard was represented at all stages by counsel of his own choosing. As the prior panel indicated, the applicable standard is found in Fitzgerald v. Estelle, 505 F.2d 1334, 1337 (5th Cir.), Cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975):

To find state involvement in retained counsel's conduct which is adjudged to be less than reasonably effective, yet not so grossly deficient as to render the proceedings fundamentally unfair, it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action the state action requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained attorney's representation is so apparent that a reasonably attentive official of the state should have been aware of and could have corrected it then again the state action requirement is satisfied.

In Howard v. Henderson, 519 F.2d 1176 (5th Cir.), Cert. denied, 423 U.S. 1036, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975), this court considered a fact situation quite similar to the one now before us. Howard also filed an application for a writ of habeas corpus in which he contended that his attorney did not properly investigate his case and therefore denied him effective assistance of counsel. This court held:

Howard's conviction cannot be set aside unless his attorney's advice was not 'within the range of competence demanded of attorneys in criminal cases.' Tollett v. Henderson, 411 U.S. 258, 264, 93 S.Ct. 1602, 1606, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970). Where the conduct of retained counsel is in issue, constitutional guarantees of competent counsel are not infringed due to lack of state action unless representation is 'so grossly deficient as to render the proceedings fundamentally...