Cooper v. Fitzharris, 74-2998

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation586 F.2d 1325
Docket NumberNo. 74-2998,74-2998
PartiesTroy COOPER, Petitioner-Appellant, v. C. J. FITZHARRIS, Respondent-Appellee.
Decision Date01 December 1978

James F. Hewitt, Federal Public Defender (argued), William M. Goodman, Asst. Federal Public Defender, on the brief, San Francisco, Cal., for petitioner-appellant.

Ann Jensen (argued), San Francisco, Cal., for respondent-appellee.

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


BROWNING, Circuit Judge:

Troy Cooper, a state prisoner convicted of burglary, assault, robbery, and rape, filed a petition under 28 U.S.C. § 2254 alleging he had not been afforded effective assistance of counsel at trial. The district court denied the petition and Cooper appealed. The appeal was heard in banc to consider the standard to be applied in determining whether counsel's performance met constitutional requirements, and to decide whether counsel's deficiencies must have prejudiced the defendant to require a new trial. 1

We hold that the Sixth Amendment requires that persons accused of crime be afforded reasonably competent and effective representation. We also hold that where, as here, the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel's errors prejudiced the defense. We conclude that the representation afforded appellant in this case satisfied the Sixth Amendment, and affirm.


The facts, briefly stated, are as follows. A black man wearing a blue sweater broke into the San Francisco home of Mrs. Eva Mae Stewart, entered her bedroom, and attacked her. Mrs. Stewart scratched her assailant on the face and neck. After the attack the assailant fled in the direction of the Jedediah Smith School a few blocks away.

An hour and a half later a black man wearing a blue sweater attacked Mrs. Luisa Younger as she walked across the Jedediah Smith schoolyard on her way to church, and raped and robbed her at knifepoint.

Appellant's fingerprints were found in the Stewart home. He was arrested when he visited his probation officer. There were scratches on appellant's face and neck, the result, he claimed, of an attack by a woman on Fillmore Street a few weeks earlier. Appellant denied having been to the Stewart home. He admitted having crossed the Jedediah Smith schoolyard in the past, but denied having been there on the day of the attack.

Appellant consented to a search of his home. The search revealed a pair of shoes allegedly worn by appellant on the day of the attacks and a knife allegedly used in the Younger attack. A search of appellant's person incident to booking revealed a laundry ticket which led in turn to the retrieval of a blue sweater with discolorations, possibly bloodstains. A lineup was conducted. Mrs. Stewart and Mrs. Younger identified appellant as their assailant.

At trial, Mrs. Stewart identified appellant's picture from a photograph of the pre-indictment lineup. Mrs. Stewart's daughter identified appellant as the man who had attacked her mother. Mrs. Younger identified appellant's picture from a photograph of the lineup and pointed him out at trial. Her identification remained positive after vigorous cross-examination. Fingerprints found in the Stewart home were introduced and identified as appellant's. The prosecution also introduced the blue sweater, the knife, the shoes, and the statements made by appellant to police following his arrest.

Appellant took the stand on his own behalf. He testified he climbed through the window of the Stewart home to get out of the rain and Mrs. Stewart attacked him. He denied involvement in the Younger attack. The jury found appellant guilty; he was sentenced to two consecutive five-year to life terms. He did not appeal.

Seven years later appellant filed the present petition. The only claim relevant to this appeal is that he was not afforded effective assistance of counsel at trial. To support this claim, appellant cited counsel's failure to object to admission of the fruits of the warrantless searches of appellant's person and home, failure to move to suppress the statements made by appellant to police, failure to object to testimony regarding appellant's identification at the pre-indictment lineup, and failure to inform appellant of his right to appeal. Appellant also criticized his attorney's failure to stipulate to appellant's prior burglary conviction, pointing out that when put to its proof the state established not only that appellant was a convicted felon but also that his probation for the felony had been revoked.

The district court dismissed the petition after an evidentiary hearing on the ground that the challenged acts and omissions of counsel were either not prejudicial or did not reduce appellant's trial to a "farce and mockery of justice."

Appellant argues that he was not required to show that his trial was a "farce and mockery of justice" but only that he did not receive reasonably competent and effective assistance of counsel. We agree. Appellant argues that he discharged this burden, and that he is entitled to a new trial whether or not counsel's errors prejudiced the defense. We do not agree. 2


We join other courts of appeals in concluding that the "farce and mockery" standard has been outmoded by the gradual development of the law, and that reasonably competent and effective representation is a more apt and accurate description of the quality of legal assistance required under the Sixth Amendment. 3

The "farce and mockery" test originated when the right to effective assistance of counsel was thought to rest on the general guarantee of the due process clause. The test faithfully reflected its origin: a conviction could be overturned only if the deficiencies in counsel's performance were so egregious as to shock the conscience of the reviewing court and thus offend due process. 4

The Supreme Court's decision in Gideon v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), recognized that the source of the right was the specific Sixth Amendment guarantee of the right to assistance of counsel, made obligatory upon the states by the due process clause of the Fourteenth Amendment. A line of Supreme Court decisions, culminating in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), undercut the notion that the command of the Sixth Amendment was satisfied merely by appointment of a reputable member of the bar and that counsel's performance after appointment need only meet due process standards. 5 It was established that persons accused of crime are entitled not merely to counsel's presence but to effective assistance of counsel, and that effective assistance means assistance "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. at 1449.

Experience proved baseless the fear that unprincipled lawyers, indifferent to their professional obligations and reputations, would perform below minimum constitutional standards to render their clients' convictions vulnerable to collateral attack. The concern that courts would be overburdened with frivolous accusations of incompetent assistance was met by requiring specificity in pleading the inadequacies of counsel's performance and how they prejudiced the accused. As a description of the protection actually afforded the rights of the accused, the "farce and mockery" formulation became increasingly inaccurate. In practice, the interest in finality was made to yield whenever an accused person had been prejudiced by a lack of reasonably competent legal assistance. With growing frequency the constitutional standard was stated in these terms.

The shift was gradual. In this circuit, as in others, both forms of statement were used during the same period, often in the same opinion. 6 The two were said to be synonymous. 7 We believe the differences are of sufficient importance, however, to justify deliberate rejection of the "farce and mockery" verbiage in favor of a statement of the test in terms of reasonably effective and competent defense representation.

This rephrasing links the standard directly to the Sixth Amendment guarantee of effective assistance of counsel, as well as to the general requirement of due process. It focuses inquiry upon the subject matter of the constitutional guarantee counsel's performance. It avoids the misleading implication that what occurred at the trial and appears on the face of the record is all that is relevant.

The restatement substitutes a significantly more objective reference for a peculiarly subjective one. Whether counsel's deficiencies converted a trial into a "farce and mockery" depends upon the subjective reaction of the particular judge. Whether counsel's acts and omissions were within the range of competence required of criminal attorneys also involves a measure of personal judgment, but the judgment is made with reference to a fact the court knows or can determine by inquiry. 8 Similar standards are applied in other areas of the law and are familiar to the judges.

The reformulation more accurately describes the law as it has actually been applied, in this circuit and in others, for many years. It is consistent with, and perhaps required by, the Supreme Court's characterization of the substance of the constitutional right to assistance of counsel in such recent cases as McMann v. Richardson, supra, and Tollett v. Henderson, 411 U.S. 258, 268, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). To repeat the words of Justice White in McMann, persons accused of crime are "entitled to the effective assistance of . . . counsel" acting "within the range of competence...

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    • September 30, 2019
    ...cumulative impact of multiple deficiencies.'" Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005) (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978) (en banc)). The cumulative impact of counsel's errors can give rise to prejudice, particularly where a series of errors preven......
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    ......576] . view has prevailed in the federal Courts of Appeal, although. the words chosen to express the standard have varied. See. Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th. Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59. L.Ed.2d 793 (1979) ("reasonably competent ......
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    • June 17, 2022 this one where counsel performs deficiently numerous times or in various ways while representing a party. See Cooper v. Fitzharris , 586 F.2d 1325, 1333 (9th Cir. 1978) ("If counsel is charged with multiple errors at trial, absence of prejudice is not established by demonstrating that no......
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1 books & journal articles
  • "A watchdog for the good of the order": the Ninth Circuit's en banc coordinator.
    • United States
    • Journal of Appellate Practice and Process Vol. 12 No. 1, March 2011
    • March 22, 2011
    ...from Alfred T. Goodwin to Panel, Re: Cooper v. Fitzharris (July 12, 1977) (addressing Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir.), 586 F.2d 1325 (9th Cir. 1978) (en banc) (affirming (47.) Memo. from Alfred T. Goodwin to Associates, Re: Saenz (Mar. 11, 1987). (48.) Memo. from Alfred T. Go......

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