Dawson v. Cowan, 75--1338
| Citation | 531 F.2d 1374 |
| Decision Date | 26 March 1976 |
| Docket Number | No. 75--1338,75--1338 |
| Parties | Joe DAWSON, Petitioner-Appellant, v. Henry COWAN, Superintendent, Kentucky State Penitentiary, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Paul F. Isaacs, Asst. Public Defender, Frankfort, Ky., for petitioner-appellant.
Ed W. Hancock, Atty. Gen. of Kentucky, James M. Ringo, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.
Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
This is an appeal from a judgment of the District Court for the Western District of Kentucky denying appellant's petition for a writ of habeas corpus. Appellant is confined in the Kentucky State Penitentiary at Eddyville.
On February 23, 1972, appellant Joe Dawson was convicted by a jury of the attempted rape of a child under the age of twelve, and sentenced to twenty years confinement. Although he was also charged under the habitual offender statute, KRS 431.190, the jury convicted him of only the principal offense. An appeal presenting the issue of ineffective assistance of counsel was taken to the Kentucky Court of Appeals, which affirmed the conviction.
Appellant filed a Petition for a Writ of Habeas Corpus in the district court, and again asserted the claim of ineffective assistance of counsel. He alleged the following facts in support of this contention. His court-appointed counsel, John Scott McGaw, was the City Attorney for Madisonville, Kentucky, where the crime occurred. Appellant contends that McGaw's office prevented him from representing appellant with undivided loyalty. He also contends that the jury was told in connection with the habitual offender charge that appellant had previously been convicted of rape, despite the fact that the prior conviction was for attempted rape. He asserts that McGaw made no attempt to correct this discrepancy. He also complains that McGaw failed to ask the court to instruct the jury that evidence of a prior offense could be considered only in connection with the habitual offender charge, and not as proof of his guilt of the principal charge. He contends that his counsel erred in failing to object to statements volunteered by two police witnesses about an unrelated arrest warrant pending against him at the time of his arrest. Finally, he contends that after filing a motion for a new trial, McGaw abandoned him by failing to bring the motion on to be heard, which had the effect under Kentucky practice of barring an appeal.
In support of his contention that the appointment of the city attorney as his defense counsel per se denied him the effective assistance of counsel, appellant relies upon Berry v. Gray, 155 F.Supp. 494 (W.D.Ky.1957). That case held that a defendant was denied the effective assistance of counsel when the county attorney, who was required by statute to assist the Commonwealth attorney in criminal prosecutions, was appointed to represent him. Appellant urges us to overrule Harris v. Thomas, 341 F.2d 560 (6th Cir. 1965), where we expressly refused to adopt a rule that a city attorney is per se disqualified for appointment to represent an indigent defendant accused of a crime. Appellant argues that the city attorney, who has a duty to prosecute misdemeanor cases arising under city ordinances, and who may advise city policemen from time to time, cannot maintain the unimpaired loyalty to a criminal defendant client that is required by the standard of effective assistance of counsel. He contends that even if no actual prejudice to his interest can be shown, the appearance of impropriety and the risk of prejudice are so great that the court should forbid this practice by adopting a per se rule.
Per se rules frequently are fashioned when there is an unusually high risk of prejudice to a party and the proofs of prejudice may be difficult to establish; or when an important social policy will be served by a prophylactic rule; or a more definite standard is required to guide official conduct in future cases; or when case by case analysis places an unjustifiable burden on limited judicial resources. We should not consider overruling our prior decision in Harris v. Thomas, where we rejected a per se rule, without a record that permits us to give proper weight to these considerations. Since Dawson's petition was disposed of on motion without an evidentiary hearing, this record is an inadequate vehicle. We are also concerned that the adoption of a per se rule might make it difficult or impossible to secure appointed counsel for indigent defendants in sparsely settled communities where there are few lawyers, and most or all of them may have some governmental affiliation. For these reasons, and because our determination of another issue is dispositive of this appeal, we decline at this time to review our earlier decision in Harris v. Thomas.
Appellant's second contention, that McGaw's failure to bring on for hearing the motion for a new trial prevented appellant from appealing, will not support a finding of unconstitutional detention because no prejudice resulted. As we noted above, Dawson...
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Martin v. Wilson
...defendant is charged under a state habitual offender law and evidence of a prior conviction is presented to the jury. See Dawson v. Cowan, 531 F.2d 1374 (6th Cir.1976); Evans v. Cowan, 506 F.2d 1248 (6th Cir.1974). Other federal Circuits have not similarly construed Spencer. See, e.g., Chri......
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Taylor v. State
...v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 4. United States v. Garcia, 530 F.2d 650 (5th Cir.1976); Dawson v. Cowan, 531 F.2d 1374 (6th Cir.1976); United States v. Diaz, 585 F.2d 116 (5th Cir.1978); United States v. DeGeratto, 876 F.2d 576 (7th Cir.1989). 5. Because the......
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Honken v. United States
...count 7 (conspiracy to tamper with witnesses and to solicit the murder of witnesses) of the superseding indictment. See Dawson v. Cowan, 531 F.2d 1374, 1377 (6th Cir.1976) (finding that the district court's failure to give a limiting instruction even though counsel did not request such inst......
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State v. Murray
...a prior conviction without a limiting instruction is so prejudicial that it constitutes plain error. Id. at 591 (citing Dawson v. Cowan, 531 F.2d 1374 (6th Cir. 1976); Evans v. Cowan, 506 F.2d 1248, 1249 (6th In both Dawson and Evans, which involved the admission of prior convictions, the d......