Daniels v. Maggio

• Decision Date: 12 March 1982
• Docket Number: No. 81-3024,81-3024
• Citation: 669 F.2d 1075
• Parties: Ernest DANIELS, Plaintiff-Appellant, v. Ross MAGGIO, Jr., Warden, Angola Penitentiary, and The Attorney General of the State of Louisiana, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1075

669 F.2d 1075

Ernest DANIELS, Plaintiff-Appellant, v. Ross MAGGIO, Jr., Warden, Angola Penitentiary, and The Attorney General of the State of Louisiana Defendants-Appellees.

No. 81-3024.

United States Court of Appeals Fifth Circuit.

March 12, 1982.

Bruce C. Waltzer, New Orleans, La., for plaintiff-appellant.

John H. Craft, Asst. Dist. Atty., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ and RANDALL, Circuit Judges, and PARKER ^*, District Judge.

JOHN V. PARKER, District Judge:

Appellant, Ernest Daniels, was convicted in Louisiana state court in New Orleans of armed robbery in violation of LSA-R.S. 14:64 and, after a hearing in accordance with state law, was sentenced as a multiple offender to an enhanced sentence of 99 years without benefit of probation or parole. He appeals from the denial by the district court of his petition for habeas corpus. For reasons detailed below, we conclude that the district court was correct and that Daniels is not entitled to relief.

Daniels has exhausted state remedies: His conviction and sentence were affirmed by the Louisiana Supreme Court, State v. Daniels, 346 So.2d 672 (La.1977) and he then sought habeas corpus relief in state court. After an evidentiary hearing, the state trial court denied relief and the Supreme Court of Louisiana denied review. State ex rel. Daniels v. Blackburn, 377 So.2d 1034 (La.1979). Daniels then initiated his petition for habeas corpus under 28 U.S.C. § 2254.

The collateral attack upon the conviction relates to the trial performance of Daniels' court-appointed counsel and includes an attack upon a rule of the Supreme Court of

Louisiana which allows participation by law students in criminal trials, under some circumstances.

FACTS

On August 15, 1974, two armed black males forced their way into a loan company office in New Orleans and robbed the employees. In January, 1975, Daniels and co-defendant, Edward Watson, were arrested, apparently as the result of a tip from an informant. Both were charged with armed robbery. Shortly thereafter, attorney Basile Uddo, an experienced criminal practitioner, was appointed by the court to represent Daniels. Daniels also consented that two senior law students from the Tulane Law School assist Uddo. On February 24, 1975, Uddo and the law students filed motions on behalf of Daniels, including a motion for a bill of particulars, a motion for oyer of any confession and a motion to suppress the testimony of line-up identification of Daniels. The motions were heard on March 4, 1975, and there was an evidentiary hearing on the motion to suppress. The record shows that examination of the witnesses at the trial of the motion to suppress was conducted completely by the law students under Uddo's supervision. The motion was denied by the court. On that same date, the court granted a motion that a subpoena issue for the trial testimony of a Dr. McDaniel. Additional motions were heard on March 21, 1975, again presented by the law students under Uddo's supervision. On April 3, 1975, trial of Daniels and Watson began with Uddo and the law students representing Daniels. Co-defendant Watson was represented by retained counsel. For reasons which are not entirely clear from the record before us, a mistrial was declared prior to completion of the selection of the jury. The matter was reassigned for trial on May 8, 1975. On May 2, 1975, the prosecution filed a motion to offer evidence of other crimes committed by Daniels for the purpose of showing "system and intent." The motion was opposed by the law students, under Uddo's supervision, and on May 7th, the court denied the prosecution's motion. Trial began on May 8th. One or two days prior to trial, Uddo discovered that he could not be present for trial and he requested Mr. Frederick W. Bradley to take over the defense of Daniels. Mr. Bradley agreed and Daniels consented to this arrangement; the court thereafter approved the substitution. At the trial the jury convicted Daniels and acquitted the co-defendant, Watson.

Daniels contends that Bradley, although a "top flight oil and gas lawyer" had tried only one criminal case before the Daniels case and that he and the two law students committed many trial errors which resulted in denial of his Sixth Amendment right to effective assistance of counsel.

STANDARD OF REVIEW

The standard applicable to review of claims of ineffective assistance of counsel is well established. A habeas corpus petitioner has the burden to demonstrate by sufficient factual proof, an identifiable lapse on the part of trial counsel, as well as some actual adverse impact upon the fairness of his trial which results from that lapse. Boyd v. Estelle, 661 F.2d 388 (5th Cir. 1981); Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981). While it is clear that the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, prevents the state from conducting trials at which defendants must defend themselves without adequate legal assistance, Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the constitutional standard 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, 280 F.2d 592, 599 (5th Cir. 1960) adopted on rehearing, en banc 289 F.2d 928 (5th Cir.) cert. den. 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). The determination of whether the defendant received reasonably effective assistance of counsel is predicated upon the entire record and the totality of the circumstances surrounding the trial performance. Washington v. Estelle, 648 F.2d 276 (5th Cir. 1981).

Here Daniels was granted an evidentiary hearing in state court upon his claims of ineffective assistance of counsel and under 28 U.S.C. § 2254(d), the federal district court was required to give a presumption of correctness to state court findings of fact. Grantling v. Balkcom, 632 F.2d 1261, 1263 (5th Cir. 1980). The record here shows that the state court made no specific findings of fact; it simply generally concluded that counsel for Daniels was not incompetent. This conclusion does not constitute a specific factual finding to which the § 2254(d) presumption attaches. Mason v. Balcom, 531 F.2d 717, 722 (5th Cir. 1976). Accordingly, the district court was free to draw its own factual conclusions from the state court habeas corpus hearing or to conduct its own evidentiary hearing. No evidentiary hearing was held in the district court and our review is of the state court proceedings.

In his brief, Daniels focuses upon Bradley's minimal criminal trial experience, the late substitution of counsel and the inexperience of the law students who actually conducted all examination and cross examination of witnesses. He fails to clearly articulate identifiable lapses by counsel and actual adverse impact upon the fairness of his trial as is required by the jurisprudence. Boyd v. Estelle, 661 F.2d 388 (5th Cir. 1981); Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981). At oral argument, however, counsel settled upon the following as constituting trial errors impinging upon the fairness of his trial: (1) The failure to require the live testimony of a physician who was a "crucial" defense witness; (2) The alleged "bungling" of the examination of a defense witness who, invoking his privilege under the Fifth Amendment, refused to answer any questions; (3) The failure to adequately and effectively cross examine prosecution witnesses, particularly as to impeachment by prior inconsistent statements; and (4) The failure to timely object to the jury selection procedure, thus not preserving that issue for appellate review.

(1) The Absence of the Medical Witness.

About two months prior to the date of the robbery, August 15, 1974, Daniels sustained gunshot wounds in his lower right leg, his left hip, his left buttock and his right arm. As a result of those wounds, he was treated at Charity Hospital in New Orleans by a Dr. James G. McDaniel. Surgery was performed and Daniels was placed in a cast covering his shattered right fibula. He was hospitalized from June 16th through June 25th, 1974 and was discharged to one month's bed rest with a long-leg cast on his right leg. On July 23, 1974, the cast was removed from the leg and at that time Daniels still walked with a limp.

One of the robbery victims initially told investigating police officers that one of the robbers had jumped over a counter during the course of the robbery and Daniels was identified as that person. In anticipation of such testimony at the trial, Uddo and the law students under his supervision attempted to establish what they termed a "medical alibi" which was designed to convince the jury that on the date of the robbery, it would have been "medically impossible" for Daniels to have jumped over the counter. To that end, the defense sought witnesses among Daniels' relatives and friends who had seen him during the weeks immediately preceding the date of the robbery and also sought the Charity Hospital physician who had treated him. They were able to locate the physician, Dr. McDaniel, and, as noted earlier, secured an order of court directing the issuance of a subpoena to him. Miss Nancie Theissen, one of the law students representing Daniels, testified at the state habeas corpus hearing, that when they interviewed Dr. McDaniel, "he could not say that Daniels could not possibly have jumped over the counter because of the gunshot wounds."

Miss Theissen further testified that, subsequent to the interview, and as a matter of trial strategy, they decided that the most effective way to present the medical testimony was to offer the hospital records and an affidavit from Dr. McDaniel under a stipulation with the prosecution that if Dr. McDaniel were called as a witness, he...