Berry v. King

• Citation: 765 F.2d 451
• Decision Date: 01 July 1985
• Docket Number: No. 85-3043,85-3043
• Parties: Benjamin A. BERRY, Petitioner-Appellant, v. John T. KING, Secretary of Department of Corrections, Etc., et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 451

765 F.2d 451

Benjamin A. BERRY, Petitioner-Appellant, v. John T. KING, Secretary of Department of Corrections, Etc.,

et al., Respondents-Appellees.

No. 85-3043.

United States Court of Appeals,

Fifth Circuit.

July 1, 1985.

Samuel S. Dalton, Jefferson, La., for petitioner-appellant.

John M. Mamoulides, Dist. Atty., William C. Credo, III, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, La., for respondents-appellees.

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

Before RUBIN, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This appeal from a denial of a petition for habeas corpus raises two issues: (1) whether Benjamin Berry was denied effective assistance of counsel in his state capital murder trial; and (2) whether this circuit should reconsider its position that excluding from the guilt phase of a capital case jurors who are absolutely opposed to the death penalty does not violate the constitutional rights of the defendant in light of the Eighth Circuit's decision in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), petition for cert. filed sub nom Lockhart v. McCree, 53 U.S.L.W. 3870 (U.S. May 29, 1985) (No. 84-1865). We affirm the denial of the petition, but leave in effect the stay of execution for fifteen days in order to permit Berry to apply for certiorari.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 30, 1978, Benjamin Berry and David Pennington drove from Baton Rouge to Metairie with the intention of robbing the Metairie Bank and Trust Company. Berry entered the bank and drew a nine millimeter automatic pistol. There was an exchange of gunfire between Berry and Cochran, a Jefferson Parish deputy sheriff working as a guard in the bank, in which Berry fired three shots and Cochran fired one shot. Cochran's shot struck Berry in the lower left chest; two of Berry's shots struck Cochran in the shoulder and the neck, resulting in Cochran's death. Berry and Pennington fled the scene and returned to Baton Rouge, where both were arrested.

Berry was indicted for first-degree murder, and retained Frederick A. Blanche, III as counsel for his trial. The state's evidence identifying Berry as the individual who committed the attempted armed robbery and shooting was overwhelming. At trial, Blanche conceded in his opening statement that Berry intended to rob the bank in Metairie. In addition, Blanche stipulated to the following facts: (1) that Berry went to the bank intending to commit an armed robbery; (2) after entering the bank Berry fired three shots, two of which struck and killed Cochran; (3) Cochran fired a single shot which struck Berry; and (4) the bullets which were found in Cochran and Berry each came from the other's gun. The guilt phase of the trial proceeded with the state calling various witnesses to the crime, attempting to establish that Berry fired the first shot in the bank. Berry's defense in the guilt phase was that he did not possess the specific intent necessary for a first degree murder conviction under the Louisiana statute. Berry was the only witness in his behalf, and his testimony essentially corroborated the facts in the stipulation. He denied that he fired the first shot, contending that he did not intend to shoot Cochran, but did so only as a self-defense reflex.

The jury found Berry guilty, and the sentencing phase proceeded. During this phase, Blanche introduced no witnesses or evidence on Berry's behalf. Berry's mother was called to testify, but was apparently overcome by emotion and ultimately was not placed on the stand. Berry was sentenced to death.

Berry's conviction was affirmed on appeal, and the United States Supreme Court denied certiorari. Berry then filed a state habeas corpus petition, which was denied after an evidentiary hearing. The primary charge made in the state habeas petition is the same as that made in this federal petition--that Berry was denied effective assistance of counsel because Blanche was addicted to illegal drugs at the time of the trial. A number of witnesses testified in the state evidentiary hearing, including Blanche himself, the state judge who presided over Berry's trial, David Pennington's attorney, and various associates of Blanche. The testimony of Blanche's associates was that he had, at times in the past, had problems with drugs. The state judge and others who were present at Berry's trial testified that he did a good job in a difficult case. The denial of the state habeas petition was affirmed by the Louisiana Supreme Court. State v. Berry, 430 So.2d 1005 (La.1983).

Berry then filed this federal habeas corpus petition under 28 U.S.C. Sec. 2254 in the district court for the Eastern District of Louisiana. The district court dismissed all of Berry's claims save that of ineffective assistance of counsel, and granted a stay of execution pending the outcome of Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), which were then pending before the Supreme Court. Berry appealed this ruling and this court remanded after the decisions in Strickland and Pulley v. Harris were issued, 736 F.2d 1524.

In August 1984 an evidentiary hearing was held before a magistrate. At this hearing, the testimony again was largely directed to Blanche's involvement with drugs. The magistrate recommended that Berry's petition be dismissed, and his findings and recommendations were adopted by the district court.

Berry noticed eight separate grounds for appeal from the district court's dismissal; of these only his claims concerning ineffective assistance of counsel and a claim based on the Eighth Circuit's decision in Grigsby v. Mabry have been pressed in this appeal.

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In evaluating whether a conviction must be reversed for ineffective assistance of counsel, we utilize the two-part test set forth by the Supreme Court in Strickland v. Washington:

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.

--- U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In evaluating the first prong of the Strickland test, whether counsel's professional conduct falls short of the standard, Strickland teaches us that:

Judicial scrutiny of counsel's performance must be highly differential ... Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. at ---- - ----, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95.

The prejudice required by the second prong of the Strickland test is something considerably more than the possibility that an unreasonable error by counsel might have had some effect on the trial. As the Supreme Court stated in Strickland: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A "reasonable probability" is defined as a probability sufficient to undermine confidence in the outcome of the case. Id.

Berry's contentions of ineffective assistance essentially fall into two closely related categories. First, Berry contends that as a result of his alleged drug addiction Blanche failed to adequately investigate and prepare for the defense of his case. This lack of investigation and preparation allegedly caused Blanche to fail to locate witnesses who could have supplied exculpatory information in the guilt phase and mitigating testimony in the penalty phase. Second, Berry contends that Blanche's drug use, plus his failure to investigate, prevented him making any sort of organized presentation during the guilt and sentencing phases of the trial. Berry contends that in the guilt phase this caused Blanche to stipulate to the "functional equivalent of a plea of guilty" without Berry's consent. He further contends that during the sentencing phase Blanche was unable to make more than a "tepid" plea for his client's life.

We first note that the question whether Blanche in fact used drugs during Berry's trial was far from settled in either the state or the federal evidentiary hearings. In any case, under Strickland the fact that an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether, for whatever reason, counsel's performance was deficient and whether that deficiency prejudiced the defendant. We therefore concentrate on Berry's specific allegations of deficient performance and prejudice.

In Strickland, the Supreme Court noted that "a...