Bonds v. Wainwright

• Decision Date: 16 December 1977
• Docket Number: No. 75-3914,75-3914
• Citation: 564 F.2d 1125
• Parties: Jimmy Ray BONDS, Petitioner-Appellant, v. Louis L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1125

564 F.2d 1125

Jimmy Ray BONDS, Petitioner-Appellant, v. Louis L. WAINWRIGHT, Director, Division of Corrections,

Respondent-Appellee.

No. 75-3914.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1977.

Rehearing En Banc Granted Feb. 13, 1978.

Thomas A. Gribbin, Miami, Fla., for petitioner-appellant.

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

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

Before BROWN, Chief Judge, TUTTLE and TJOFLAT, Circuit Judges.

TUTTLE, Circuit Judge:

In 1953, a jury in Florida state court found Jimmy Ray Bonds guilty of rape. He was sentenced to thirty years imprisonment, which he did not appeal. In 1974, however, Bonds challenged his conviction by seeking a writ of habeas corpus, first, unsuccessfully from Florida, and then in the federal courts. ¹ The district court denied relief. In his appeal, Bonds challenges the lower court's decision in only one respect: he asserts 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.

The State of Florida was unable to provide any transcript of Bonds' trial or sentencing. In any case, a transcript would not be likely to reveal whether Bonds' counsel did or did not adequately advise and consult with him about the possibility of appeal. The lower court, however, conducted an evidentiary hearing, at which Bonds and his trial attorneys, Murray Klein and Harry Durant, testified. The findings of the lower court bespeak its effort to identify the facts of a case which did not readily fit within more common categories of effective or ineffective assistance. We therefore will set out the relevant findings at some length.

The lower court found that Bonds "did not affirmatively consent to forego an appeal, nor did he press for an appeal." Rather, Bonds, then sixteen years of age, "left that decision to Klein;" he "reposed his confidence in his lawyer to make the right decision." "Klein, in consultation with Durant, exercised that judgment for" him. Though the opinion below does not expressly so find, its conclusion that Bonds relied on his lawyer may well imply that Bonds was at least aware that some sort of appeal option existed. At one point, the court indicated that "(t)here is a strong suggestion . . . that the motivating factor which caused Bonds not to take an appeal was the fact that Bonds had received a thirty year sentence in a capital case where the facts were harsh facts indeed." By this the court may have meant that Bonds' reliance on his lawyers seemed to be accompanied by, or to stem from, his awareness of his jeopardy. But the court did not find this as a fact. (It is also possible that the court meant only that Bonds' counsel took into account the risks he ran if he appealed, rather than that Bonds himself did.) In some respects, at least, the court did believe that Bonds' understanding of his plight was limited for it twice commented that Bonds "was not familiar with his appellate rights." Bonds had testified that he "remember(ed) Before we can evaluate the merits of Bonds' position, we must consider whether the lower court's view of the facts is correct. Although neither party to this appeal explicitly attacks the findings below, the state's brief outlines a seemingly different picture of the events of the case. It argues that appellant failed to sustain his burden of proof, and that "the evidence strongly supports . . . conclusions . . . (1) that the appellant was apprised of the right to appeal and (2) that the appellant agreed to forego that appeal in view of the risks involved." To be sure, the state does not assert that Bonds' lawyers acquainted him with the procedural requisites for prosecuting an appeal; in this sense, the state does not depart from the court's view that Bonds "was not familiar with his appellate rights." But the state argues that Bonds evaluated the risks and as a result agreed not to pursue an appeal. The court may have believed that Bonds was cognizant of the risks, and that he was aware in some sense of the possibility of appeal. Even if Bonds took these factors into account in choosing to rely on his lawyers' judgment, the court clearly found that Bonds "did not affirmatively consent to forego an appeal" but rather relied on his lawyers, who "exercised that judgment for him." (Emphasis ours.)

shortly after the conviction Mr. Klein saying something to the effect he thought there were errors which would warrant a new trial, and I think he was even talking to Mr. Durant other (sic) than me . . . ." The court concluded that Bonds' lawyers had, in his presence, given some consideration to the possibility of appeal, but it also specifically referred to his lack of familiarity with his rights at that time. The court also observed that "there was at least some discussion relating to the possibility of appeal."

We, of course, are bound by the lower court's findings of fact unless these are clearly erroneous. These are not. Only Bonds claimed to have any distinct memory of the events in question. He testified that he was never advised of his appellate rights, and understood nothing about the taking of an appeal, and that he felt his lawyer would have pursued an appeal if the lawyer had felt it would help. Moreover, the thrust of Bonds' testimony was contradicted by both of his lawyers. They testified that as a matter of custom they would have discussed the appeal decision with their client, though neither had any distinct memory of whether or not they had done so. The state also mounted a direct attack on Bonds' credibility. Emphasizing Bonds' long delay before seeking relief, the state suggested that the impulse for his present effort was not new knowledge of his legal rights, but hope that the transcript of his trial would have disappeared as it had and that relief would therefore be more likely. While the state's portrayal of Bonds is not implausible, it is also not entirely compelling. Judge Eaton, of course, heard Bonds' testimony, as we did not. Perhaps guided by his own knowledge of 1950s Florida criminal procedure, to which he referred briefly at the hearing. ² the lower court did not have to believe Bonds' somewhat inconsistent testimony entirely (or at all) but it could reasonably have accepted that at least a central point was true that Bonds had not actually taken part in the decision on whether or not to take an appeal.

Taking these facts as established, we must now decide whether they show a violation of Bonds' right to counsel. Our starting point is the observation that no such violation can have occurred unless Bonds had a right to effective assistance of counsel on appeal in 1953, when these events transpired. It is established that the indigent defendant's right to appointed counsel at trial, and on appeal is retroactive, See, e.g., Stovall v. Denno,388 U.S. 293, 297-98, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Smith v. Crouse, 378 U.S. 584, 84 Even when a rule of law has retroactive effect, however, its application may not be automatic. The court's capacity to evaluate past conduct in terms of present rules is stretched to the utmost when, as here, a transcript of the original events can be no longer provided and the participants' memories have also faded. In one of its first efforts to cushion the retroactive impact of newly-declared constitutional protections, the Supreme Court put considerable emphasis on the unavailability through no fault of the state of a trial transcript. The case was Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963). The issue arose out of the response of the State of Illinois to the Supreme Court's decision in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) which reasoned that the state must provide to an indigent defendant a right of appeal comparable to that enjoyed by the more wealthy, and therefore proscribed the flat denial of a free transcript if that denial stymied an indigent's appeal. Illinois had thereupon provided by rule that indigent defendants, convicted both before and after Griffin, could receive a free trial transcript, unless the transcript could no longer be produced. In Norvell's case, no transcript of his 1941 trial existed, and an attempt to reconstruct the record through the testimony of persons who attended the trial was largely unavailing. The Illinois courts declined to afford him a new trial.

S.Ct. 1929, 12 L.Ed.2d 1039 (1964) (per curiam). Conceding as much, one might still argue that the particular elements which this Circuit has come to view as essential to effective assistance on appeal should not carry retroactive force. Instead, once a court ascertained that a defendant had had counsel physically present, it would evaluate counsel's effectiveness according to the norms of representation prevailing at the time of counsel's actions. Cf. United States ex rel. Williams v. Pennsylvania, 378 F.Supp. 1295, 1297 (E.D.Pa.1974). See generally Burston v. Caldwell, 506 F.2d 24, 27 (5th Cir.), cert. denied 421 U.S. 990, 95 S.Ct. 1995, 44 L.Ed.2d 480 (1975). We need not decide, however, whether our modern descriptions of the nature of effective assistance diverge significantly from those which governed in 1953, for a panel of this Court has already declared in broad terms that the present criteria for effective assistance do apply retroactively, Bailey v. Ault, 490 F.2d 71, 72-73 (5th Cir. 1974) (per curiam); see Byrd v. Smith, 407 F.2d 363, 365 n. 2 (5th Cir. 1969). Compare 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) (rejecting retroactive application of duty of attorneys to advise defendants of their appellate rights).

The Supreme Court affirmed. Writing for the Court, Justice Douglas...