Cooper v. Fitzharris

• Citation: 551 F.2d 1162
• Decision Date: 11 April 1977
• Docket Number: No. 74-2998,74-2998
• Parties: Troy COOPER, Petitioner-Appellant, v. C. J. FITZHARRIS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1162

551 F.2d 1162

Troy COOPER, Petitioner-Appellant, v. C. J. FITZHARRIS, Respondent-Appellee.

No. 74-2998.

United States Court of Appeals, Ninth Circuit.

April 11, 1977.

Troy Cooper in pro per.

Evelle J. Younger, Atty. Gen., Ann K. Jensen, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

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

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and EAST, District judge. ^*

EAST, District Judge:

Cooper, a State prisoner, appeals from the District Court's denial of his 28 U.S.C. § 2254 habeas petition. We note jurisdiction under 28 U.S.C. § 2253, and reverse and remand.

Cooper was indicted in 1964 by a State of California, San Francisco County grand jury, charging him with the crimes of burglary, assault, rape and robbery. A jury found Cooper guilty on all counts, and the court's judgment of conviction and sentence to custody followed in due course. No appeal to the appellate courts of California was taken.

Cooper has exhausted state court habeas remedies without relief.

In May, 1971, Cooper filed his pro per. habeas petition in the District Court substantially alleging, inter alia, that he was denied the reasonably effective assistance of trial counsel in violation of his Sixth Amendment right. The District Court appointed counsel for Cooper and ordered the record augmented by a copy of the reporter's transcript of Cooper's state trial. The District Court, following two evidentiary hearings, entered a memorandum and order denying the writ. ¹

ISSUE

The controlling issue on review is:

Did the District Court err by concluding, after a de novo review based upon the state trial record and additional evidentiary hearings, that alleged instances of ineffective legal representation on constitutional issues at trial were harmless error? ²

DISCUSSION

Cooper's main complaint of ineffective trial counsel lies in counsel's failure to challenge the introduction in evidence of articles seized from his person and residence in the course of a warrantless arrest and search, together with his after-arrest inculpating statements made to the officers. Secondarily, Cooper claims numerous items of inadequate trial preparation and conduct on the part of his trial counsel.

The District Court entertained doubt over the legality of the search and seizure of the articles received in evidence. Nevertheless it concluded de novo, based upon the state court record and additional evidentiary hearings that the seized evidence, even if tainted, was cumulative to other overwhelming relevant evidence of guilt and that the introduction of the evidence was harmless error. From this, the District Court concluded that petitioner had failed in his claim of ineffective assistance because no prejudice resulted to him due to trial counsel's failure to move to suppress the disputed evidence. Further, the District Court applied an eroded legal standard in concluding that the claimed neglects and failures on the part of trial counsel did not rise to the level of making the trial a sham or mockery of justice nor did such neglect constitute a failure to assert a crucial defense.

We are satisfied that the District Court erred on both scores.

Sanders v. Craven, 488 F.2d 478, at 480 (9th Cir. 1973), teaches that: "(t)he district judge may not circumvent the challenge of denial of effective counsel by, in effect, holding that any error would be harmless and, on that basis, fail to determine whether there has been an impermissible deprivation of Sixth Amendment rights."

We also agree with the Court of Appeals for the Sixth Circuit that once ineffective assistance of counsel has been established, harmless error tests do not apply. Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). While the Supreme Court did establish a harmless-constitutional-error rule in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), it indicated that the right to counsel was among those " . . . constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . .." Id. at 23 & n. 8, 87 S.Ct. at 827.

At the very least, a conviction may not be allowed to stand, regardless of the existence of prejudice, when a criminal defendant is denied the presence of counsel at trial and the penalty imposed includes any period of incarceration. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Both before and after Chapman, the court has made it clear that the right to counsel is the right to effective counsel. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

We cannot agree with the conclusion of the Eighth Circuit in McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974), that there is a significant difference between a case in which counsel was absent and one in which, although counsel was present, his performance has been found to have fallen below that which was constitutionally required. After all, the purpose of Gideon was not merely to supply criminal defendants with warm bodies, but rather to guarantee reasonably competent representation. That the Sixth Amendment's guarantee of the assistance of counsel is grounded in the need for reasonably competent legal assistance is made clear by the following language from Powell v. Alabama, supra, 287 U.S. at 68-69, 53 S.Ct. at 64; quoted with approval in Gideon v. Wainwright, supra, 372 U.S. at 344-45, 83 S.Ct. 792, and in Argersinger v. Hamlin, supra, 407 U.S. at 31, 92 S.Ct. 2006:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." ³

We hold that once a petitioner has carried his burden of establishing ineffectiveness of counsel, his conviction must be reversed without regard to the presence or absence of prejudice. This conclusion is buttressed by two recent Supreme Court decisions reversing criminal convictions regardless of a showing of prejudice when the court found that petitioners had been denied the assistance of counsel despite counsel's active presence throughout the trial.

In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the court held that the denial of the opportunity to make a summation at the conclusion of a jury or nonjury criminal trial violates a defendant's Sixth Amendment right to the assistance of counsel regardless of the simplicity of the case or the strength of the prosecution's evidence. In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), a criminal defendant was prohibited from consulting with counsel during an overnight recess after the conclusion of direct and prior to the commencement of cross-examination. The Fifth Circuit affirmed, holding that petitioner's failure to claim any prejudice resulting from his inability to consult with counsel during the recess was fatal. Notwithstanding the absence of a claim of prejudice, a unanimous court reversed holding that the refusal to permit the defendant to consult with his attorney violated his Sixth Amendment right to the assistance of counsel.

The Supreme Court's adherence to a prophylactic rule in right to counsel cases, such as Herring and Geders, cannot be ignored. It seems fair to say that the harmless-constitutional-error rule announced in Chapman did not alter the court's position in Glasser v. United States, supra, 315 U.S. at 76, 62 S.Ct. at 467, that:

"The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial."

Since this case must be remanded to the District Court for a factual determination as to whether there has been a deprivation of petitioner's Sixth Amendment rights, some discussion as to the appropriate standard is in order. It has been noted that the standard for judging the effectiveness of counsel in this circuit is ambiguous. United States v. Decoster, No. 72-1283 (D.C.Cir., Oct. 19, 1976), Slip Op. at 10 n. 17. Numerous decisions of this circuit have purported to apply the farce or mockery test. ⁴ However, in almost all such cases, the court actually concluded that the performance of counsel was fully adequate and/or that there had been a choice between trial tactics which at most appeared unwise only with the benefit of hindsight. E. g., United States v. Stern, 519 F.2d 521 (9th Cir. 1975), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975); United States v. Ortiz, 488 F.2d 175 (9th Cir. 1973); Mengarelli v. U. S. Marshal, 476 F.2d 617 (9th Cir. 1973); Parker v. United States, 474 F.2d 697 (9th Cir. 1973); United States v. Steed, 465 F.2d 1310 (9th Cir.), cert. denied, 409 U.S. 1078, 93 S.Ct. 697, 34 L.Ed.2d 667 (1972); United States v....