Burston v. Caldwell

• Decision Date: 06 January 1975
• Docket Number: No. 73-3811,73-3811
• Citation: 506 F.2d 24
• Parties: James BURSTON, Petitioner-Appellee, v. E. B. CALDWELL, Warden, Georgia State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 24

506 F.2d 24

James BURSTON, Petitioner-Appellee, v. E. B. CALDWELL, Warden, Georgia State Prison, Respondent-Appellant.

No. 73-3811.

United States Court of Appeals, Fifth Circuit.

Jan. 6, 1975.

Arthur K. Bolton, Atty. Gen., Daniel I. Macintyre, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.

Wayne S. Hyatt, Atlanta, Ga. (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The respondent State of Georgia prison official appeals from an order of the district court granting habeas corpus relief as to two of three convictions and sentences imposed on James Burston in 1935 under two indictments, the first charging robbery and assault with intent to rob, and the second charging armed robbery. The district court held that petitioner was denied his right to the effective assistance of counsel on the robbery count of the first indictment and as to the single armed robbery count of the second indictment. Our review of the record convinces us that the district judge was clearly erroneous in several conclusions he drew from the 1935 court records before him and erroneously applied 1974's more advanced standards in assessing as incompetent appointed counsel's performance in 1935. Accordingly, we reverse.

Two indictments were returned against petitioner in 1935. The first indictment, involving two incidents, both on March 23, 1935, charged petitioner and two co-defendants in Count One with robbery and in Count Two with assault with intent to rob. ¹ The second indictment charged petitioner and three co-defendants with armed robbery. ² Petitioner was convicted on both counts of the first indictment and received sentences of twelve to twenty years on Count One and three to four years on Count Two, to run consecutively. He was convicted of armed robbery under the second indictment and sentenced to serve twenty years following the sentences imposed under the first indictment.

Petitioner, after serving twenty months of his sentence, escaped and was not remitted to Georgia prison until 1971, thirty-four years later. Soon thereafter he filed a petition for habeas corpus in a Georgia state court. That court's denial of relief was affirmed by the Supreme Court of Georgia. Burston v. Caldwell, 1972, 228 Ga. 795, 187 S.E.2d 900. Petitioner thereupon filed a habeas corpus petition in federal district court, which denied relief on the basis of the state court hearing. Because factual disputes had not been adequately resolved in the state court proceeding we reversed and remanded for a more complete hearing. Burston v. Caldwell, 5 Cir. 1973, 477 F.2d 996.

On remand, the district court conducted an extensive evidentiary hearing, as complete as the exigencies permitted. The lapse of time between trials and this hearing presented difficulties. Complete transcripts of the 1935 trials were not available. Witnesses, co-defendants, police officers, attorneys and one judge had died. The second judge was too ill to testify and, in any event, had no memory of these distant events. The testimony of the petitioner and of one court reporter, briefs of the evidence, ³ and the certified court records of the indictments and sentences constituted the only evidence offered in support of and in opposition to petitioner's claim.

Petitioner contended in the court below that he was not afforded counsel in the 1935 proceedings, but alternatively, if the court should decide from the evidence before it that he had been, then that such representation was constitutionally deficient. ⁴ The district judge, relying solely on the documentary evidence before it, found that Burston was represented by counsel but that his attorneys rendered ineffective assistance as to two of the charges.

Our analysis begins with a brief reference to the district judge's decision not to rely on petitioner's testimony:

The only living witness to the trial (except one court reporter) is the petitioner himself who professes not to remember one trial at all and much of his testimony as to the other trial is contradictory. This Court's findings therefore must be made on the basis of records which are now available. Appendix at 161.

We agree that petitioner's testimony was either unsupported by other than his own bare assertions or contradicted by the record in too many instances to justify any reliance on it. The district court, of course, was not required to accept his testimony, even if uncontradicted. See Goodwin v. Smith, 5 Cir. 1971, 439 F.2d 1180, 1182; Tyler v. Beto, 5 Cir. 1968, 391 F.2d 993, cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574.

Although the district court based its decision solely upon the documentary evidence submitted, the 'clearly erroneous' rule still applies. See Sicula Oceanica, S.A. v. Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969,413 F.2d 1332, 1333. But the respondent-appellant's burden under Fed.R.Civ.P. 52(a) is less onerous in this situation. Id.

The Sicula Oceanica case teaches that it is our duty, when these cases are presented for review, to study the entire record thoroughly and to determine whether we are 'left with the definite and firm conviction that a mistake has been committed.' See United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766.

Volkswagen of America, Inc. v. Jahre, 5 Cir. 1973, 472 F.2d 557, 559.

The district court determined that petitioner was represented by counsel, a finding with ample support in the record. The pleadings show that attorneys Markeles and Lee appeared for petitioner in his first trial, and attorneys Charles and Harry Markeles appeared in the second trial. The briefs of evidence demonstrate this by showing trial counsel bringing out the inability of one victim to identify petitioner, instructing petitioner to take the witness stand, and objecting to statements on petitioner's behalf. The sole issue remaining, then, is the adequacy of that representation.

The first trial, involving two separate incidents, was for robbery and assault with intent to rob. Each was committed by three males, one of whom was holding a medium calibre hand gun. Both occurred the same evening and within half a mile of each other. The victim of the assault identified Burston and his two co-defendants. The victim of the completed robbery identified only the two co-defendants and specifically stated that he could not tell whether Burston was the third participant. Burston's counsel, despite this evidence developed at trial, did not move for a directed verdict of acquittal.

The district judge concluded that, because there was no eyewitness identification of Burston by the robbery victim, no evidence connected petitioner with the crime. Therefore, his attorneys should have moved for a directed verdict of acquittal and the failure to do so rendered their assistance constitutionally ineffective. However, the district court also found, and the record amply supports this determination, that as to the second count and the remainder of the trial of Count One, counsel did protect petitioner's interests. Failure to move for a directed verdict was the sole ground for finding in petitioner's favor as to this count.

The standard which this court has enunciated governing the conduct of counsel is

not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.

MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. Only the record can speak today for the attorneys whose representation is challenged. Accordingly, fair consideration must be given to the substantive and procedural law in effect in Georgia in 1935, which may help to explain actions taken by counsel which would be unacceptable under today's practices. We find that the tactical decisions made and actions taken by counsel in 1935, viewed in context, were reasonable and afforded petitioner that 'reasonably effective assistance' to which he was entitled, conceding that such practices might well be unacceptable today because of changes in procedural and substantive law.

The district judge was in error on two grounds when he held that petitioner was denied the representation to which he was entitled on Count One of the first indictment. First, he neglected the evidence linking Burston to the crime. The record does not support his finding of 'no evidence.' The congruence of time, place, modus operandi, and identification of all three co-defendants by one victim and identification of two by the other victim are strong circumstances evidencing the participation and guilt of Burston.

Second, the district judge failed to give due consideration to the 1935 status of Georgia law governing the granting of motions for directed verdicts of acquittal. Until 1965, there was no Georgia statutory authority for the granting of such motions in criminal cases. See Sutton v. State, 1967, 223 Ga. 313, 154 S.E.2d 578; but see Pritchard v. State, 1968, 224 Ga. 776, 164 S.E.2d 808 pointing out that Sutton was no longer controlling because the 1965 statutory authorization for the direction of verdicts in criminal cases was repealed by the Georgia legislature in the interim. See 110 Georgia Code Ann., Sec. 104, repealed 1966, 81A Georgia Code Ann., Sec. 201(bb). Early cases registered disapproval of granting such motions. See McCoy v. State, 1853, 15 Ga. 205. It was believed that questions of the weight of the evidence were exclusively for the jury's consideration initially. See Manley v. State, 1928, 166 Ga. 563, 144 S.E. 170, rev'd on other grounds, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; Williams v. State, 1898, 105 Ga. 814, 32 S.E. 129.

In the 1898 Williams case, supra, however, the Georgia court did acknowledge, albeit with...