Bonds v. Wainwright

• Decision Date: 30 August 1978
• Docket Number: No. 75-3914,75-3914
• Citation: 579 F.2d 317
• Parties: Jimmy Ray BONDS, Appellant-Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Appellee-Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

579 F.2d 317

Jimmy Ray BONDS, Appellant-Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender

Rehabilitation, Appellee-Respondent.

No. 75-3914.

United States Court of Appeals, Fifth Circuit.

Aug. 30, 1978.

Thomas A. Gribbin, Miami, Fla. (Court-appointed), for appellant-petitioner.

Robert L. Shevin, Atty. Gen., Miami, Fla., J. Robert Olian, Asst. Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for appellee-respondent.

On Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This case calls upon us to determine by what standard we should judge whether an attorney appointed to defend an indigent defendant at trial has rendered adequate assistance of counsel with respect to advising the defendant concerning his right to appeal. Jimmy Ray Bonds, a prisoner of the State of Florida, appeals the district court's denial of his petition for writ of habeas corpus under 28 U.S.C.A. § 2254. Bonds contends that at his 1953 trial the failure of his trial counsel adequately to advise him and consult with him about his right to appeal denied him his sixth amendment right to effective assistance of counsel at trial. A panel of this court, following Bailey v. Ault, 490 F.2d 71 (5th Cir. 1974), applied present-day standards to gauge trial counsel's actions and reversed the district court. On rehearing En banc, we vacate the decision of the panel, overrule Bailey, adopt the Fourth Circuit's reasoning in Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971) (En banc ), Cert. denied, 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462 (1972), and hold that under the standards which applied at the time of Bonds' trial, he was not denied adequate assistance of counsel.

In 1953, a jury in Florida state court found Bonds, then sixteen years old, guilty of rape and the court sentenced him to thirty years in prison. He did not appeal. In 1974, after exhausting his state remedies, Bonds petitioned for habeas relief in United States district court. The district court denied relief. On appeal, Bonds challenged only that portion of the district court's opinion denying his contention that his trial counsel failed to render him constitutionally effective assistance in connection with the decision whether or not to pursue a direct appeal of his conviction. ¹ The panel's opinion in the case at bar discussed the district court's findings of fact at length and upheld them as not clearly erroneous. We agree and differ with the panel only as to the legal conclusions to be drawn from these findings. In brief, the district court found that in Bonds' presence his attorneys discussed and considered the possibility of appealing, that Bonds neither pressed for an appeal nor affirmatively consented to forego an appeal, and that Bonds explicitly left the decision whether or not to appeal to his attorneys.

Under Bailey, Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971), supplies the standards by which to judge the effectiveness of appointed counsel even where trial took place before the Lumpkin decision itself. Therefore, the panel in the case at bar, bound by Bailey, held that Bonds would be entitled to habeas relief for failure of his court-appointed attorney expressly to advise him of specified elements of his right to appeal: existence of the right, the procedure and time limits involved, and of his right to appointed counsel on appeal. 439 F.2d at 1085. Now, En banc, we overrule Bailey and hold that Lumpkin does not apply retroactively.

Bailey viewed Lumpkin as a restatement of law already existing in this circuit rather than as a decision embodying a new standard. Lumpkin held:

an indigent accused is denied effective assistance of counsel at a critical stage of the criminal process when his court-appointed attorney fails to advise him of his right to appeal, the procedure and time limits involved, and of his right to appointed counsel on appeal.

Relying upon Edge v. Wainwright, 347 F.2d 190 (5th Cir. 1965), Cert. denied, 385 U.S. 953, 87 S.Ct. 335, 17 L.Ed.2d 231 (1966), Bailey held "there is no valid issue of retroactivity of the rule stated in Edge, Byrd, Lumpkin, ² and numerous other cases of this Court and the Supreme Court." 490 F.2d at 71.

The panel opinion in Bonds stated unequivocally that Bailey held Lumpkin applied retroactively. The matter is not so plain to us. Bailey may be read as holding Lumpkin established no new principle of law. A reexamination of the cases relied upon in Lumpkin and Bailey shows that this view is incorrect. If Bailey is to be interpreted as holding that Lumpkin, even if new law, should apply retroactively, it also lacks substance because this circuit has never subjected the Lumpkin rule to the analysis provided in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Lumpkin itself spawned the problem we now face in Bailey by introducing its holding with the phrase "(i)t is well established." In specifying what an appointed attorney must tell a defendant about his right to appeal in order to provide minimum effective assistance under the sixth amendment, Lumpkin cited our decisions in Thomas v. Beto, 423 F.2d 642 (5th Cir. 1970), and Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966). Unlike Lumpkin, neither Thomas nor Simpson places upon appointed counsel the affirmative obligation to impart to a defendant specified information about his right to appeal beyond the fact that a right to appeal exists. Thomas, which relied on Simpson, held that a defendant did not receive adequate assistance of counsel because his attorney "had no authority, without consulting with or obtaining the consent of his client, deliberately to forego (petitioner's) right * * * to appeal." 423 F.2d at 643, Quoting Wainwright v. Simpson, supra, 360 F.2d at 309. Under Thomas and Simpson, an appointed attorney cannot fail to advise his client that he has a right to appeal and then, by unilateral action, deprive his client of the opportunity to mount a direct challenge to his conviction. Although Thomas and Simpson recognize that appointed trial counsel has an obligation to bring to his client's attention that a right to appeal exists, neither case in any sense requires the remaining parts of the Lumpkin litany of counsel duties.

Bailey implied that the rule in Lumpkin also appeared in this circuit's earlier decisions in Edge and in Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969). These cases too fail to show that in this circuit the full Lumpkin rule predated the Lumpkin decision; rather, they support the contrary conclusion. In Edge, the petitioner alleged that his counsel refused to prosecute an appeal because he saw no prospect of remuneration and that petitioner informed the trial judge both of his desire to appeal and of his need for assistance. The panel remanded the case to the district court with these directions:

If Edge can prove that he was deprived of his right to appeal and to have the assistance of counsel on appeal due to his indigency and that the trial judge, or some other responsible official, knew of his plight and failed to aid him, he will have shown enough to entitle him to a writ of habeas corpus.

347 F.2d at 192. The standard in Edge differs considerably from that in Lumpkin, which requires specific affirmative advice by counsel to ensure that the defendant knows every significant factor relevant to his appellate rights.

Neither does Byrd set a specific standard for the elements of advice that trial counsel must give a defendant to discharge the minimum obligation of effective assistance under the sixth amendment. In Byrd, the defendant stated to his counsel that he wanted to appeal and counsel told the defendant and his family that an appeal would be taken. No appeal was taken. Byrd's request to appeal triggered the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), that specify the components of the obligation of appointed counsel on appeal. Byrd did not lay down specific requirements for the information that trial counsel must give to a defendant prior to a decision on whether to appeal in order to meet the minimum obligations to a client. Rather, Byrd dealt with a default by appellate counsel which took place after the defendant made a decision to appeal and expressed his decision to counsel.

An examination of the decisions of this circuit shows that Lumpkin adopted standards for effective assistance of counsel not previously applied in this circuit. Therefore, we must confront the question that Bailey did not reach: whether, under the analysis of Stovall, the rule in Lumpkin applies retroactively. Upon reconsideration En banc, we overrule Bailey and adopt the reasoning of the Fourth Circuit in Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971) (En banc ), Cert. denied, 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462 (1972), which refused retroactive application of a set of requirements similar to our Lumpkin rule which had been adopted in Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969), Cert. denied, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970).

Having determined, under the reasoning in Shiflett, that Lumpkin does not apply retroactively and, hence, that Bonds cannot rely upon a failure to perform duties first specified in that case, we now consider whether Bonds' counsel rendered constitutionally effective assistance with respect to Bonds' appellate rights according to the norms of representation prevailing at the time of counsel's actions. Cf. Burston v. Caldwell, 506 F.2d 24 (5th Cir.), Cert. denied, 421 U.S. 990, 95 S.Ct. 1995, 44 L.Ed.2d 480 (1975). At the time of Bonds' 1953 trial the prevailing standards for adequate representation by trial counsel in this...