Ewing v. Williams

• Decision Date: 07 May 1979
• Docket Number: No. 76-2058,76-2058
• Citation: 596 F.2d 391
• Parties: James EWING, Petitioner-Appellee, v. J. D. WILLIAMS, Warden, Metropolitan Correctional Center (United States of America, Real Party in Interest), Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 391

596 F.2d 391

James EWING, Petitioner-Appellee, v. J. D. WILLIAMS, Warden, Metropolitan Correctional Center (United States of America, Real Party in Interest), Respondents-Appellants.

No. 76-2058.

United States Court of Appeals Ninth Circuit.

May 7, 1979.

Stephen V. Petix and John J. Robinson, Asst. U.S. Attys. (on the brief), Terry J. Knoepp, U.S. Atty., John J. Robinson, Asst. U.S. Atty. (argued), San Diego, Cal., for respondents-appellants.

Gary Ellingson, San Diego, Cal., for petitioner-appellee.

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

Before BARNES and ELY, Circuit Judges, and KELLEHER, District Judge. ^*

KELLEHER, District Judge:

The government appeals from an order of the district court granting James Ewing's petition for post-conviction relief, filed pursuant to 28 U.S.C. § 2255, and vacating Ewing's conviction for conspiracy to import marijuana on the ground that he was denied effective assistance of counsel. Two separate but closely-related issues are presented: (1) whether the record supports the district court's findings of fact and conclusions of law; and (2) whether the district court's findings of fact and conclusions of law sufficiently support the relief granted in light of our recent decision in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (En banc ), reversing Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977).

On February 3, 1966, Ewing was tried before a jury on two indictments, one charging him with conspiracy to smuggle and smuggling cocaine, the other charging him in two counts with conspiracy to smuggle heroin and cocaine and conspiracy to smuggle marijuana. February 3 was originally set as the trial date for only the cocaine indictment, but upon the urging of the government and in light of the eventual representation of Ewing's counsel that he was prepared to proceed on the two-count indictment as well, the trial court consolidated the two cases and the trial on both indictments began. Prior to his announcement that he was ready on the second case, Ewing's counsel had notified the court that he had received the second indictment with its marijuana count only several days prior and could not answer "ready" to that case. However, counsel changed his mind and, with the assurance from the court that necessary continuances would be granted, elected to proceed to trial immediately on both indictments.

After the court dismissed all counts except the marijuana charge, the case went to the jury, and after deliberation, a verdict of guilty was returned on the marijuana count. Ewing unsuccessfully pursued appellate relief and then jumped bail, remaining a fugitive at law until his apprehension in January of 1975. Some five months later, he filed a motion for § 2255 relief from his conviction for smuggling marijuana, maintaining that he had been denied effective assistance of counsel in violation of his Sixth Amendment rights. The district court conducted an evidentiary hearing on the claim and after hearing testimony and considering the documents and affidavits submitted on both sides, entered an order vacating Ewing's conviction on the ground that he had been deprived of his right to effective assistance of counsel.

The court, in ruling on the § 2255 motion, found that Ewing's trial counsel had proceeded to trial on the marijuana offense totally unprepared. The Court also found that the unpreparedness resulted in several serious omissions, including (1) failure to move for dismissal of arguably duplicitous counts; (2) failure to conduct a pretrial interview of the government's key witness or to interview any potential defense witnesses; (3) failure to move to suppress an in-court identification; (4) failure to cross-examine the key prosecution witness with respect to possible bias; (5) failure to adequately oppose the government's attempts to impeach its own witness after he testified favorably to Ewing; and (6) failure to present any witnesses on behalf of Ewing. ¹ The Court further found that Ewing's trial counsel made a "grossly inadequate" statement to the court at Ewing's sentencing.

We are obliged to hold, and approvingly assert, that appellate courts should respect and defer to the findings of district judges regarding trial counsel's lack of preparation and investigation. The court's finding that Ewing's counsel proceeded to trial totally unprepared is a finding of fact and cannot be upset on appeal unless "clearly erroneous." Fed.R.Civ.P. 52(a). Upon reviewing the record, we cannot say that this finding is clearly erroneous. While testimony at the § 2255 evidentiary hearing was conflicting on the issue of counsel's preparedness, the district judge, who was in a position to ascertain the demeanor and credibility of the witnesses, found the evidence supporting a finding of unpreparedness credible, and disbelieved the testimony indicating counsel was prepared for trial. Moreover, the court's finding that counsel failed to perform a number of duties that may reasonably be expected of competent counsel is amply supported by the evidence on the record. Accordingly, we accept the findings made by the district court. However, the issue here in light of Cooper v. Fitzharris is not whether we should disturb a district court's finding of lack of effective assistance. Rather, the issue is whether Cooper requires more than a finding of ineffective assistance before a conviction will be reversed and a new trial ordered, and it is to that issue we now turn.

In granting the post conviction relief, the district court failed to identify the prejudice resulting to petitioner from trial counsel's inadequacy. The court found instead that the trial counsel's lack of investigation and preparation was so complete as to render impossible a determination of actual prejudice. In the district court's words, "(t)he second determination is whether counsel's failure to adequately investigate and prepare prejudiced petitioner. In that regard, this case is somewhat difficult, because counsel's lack of investigation and preparation as to Count Two of No. 36097 was so complete as to pervade the entire proceedings." The district court stated that

ineffective assistance of counsel may have had so pervasive an effect on the process of guilt determination that it is impossible to determine accurately the presence or absence of prejudice. . . . In such instances a finding of departure from the standard of normal competence requires, without more, a new trial.

The district court cited McQueen v. Swenson, 498 F.2d 207, 219 (8th Cir. 1974), Quoting Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970). The district court concluded that it "would be anomalous to require proof by petitioner of specific instances of prejudice in the face of the complete unpreparedness of counsel and his subsequent grossly inadequate assertion of petitioner's rights."

The absence of specific findings on the issue of prejudice raises a substantial question. Judicial review of a claim of ineffective assistance of counsel generally requires a two-step investigation consisting of a determination of whether counsel's performance has fallen below an established standard of competence and, if so, "where . . . 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." Cooper v. Fitzharris (en banc), supra, at 1327. Here, the trial court determined that counsel's performance did fall below the established standard of competence. ² Thus, the only issues for decision are whether the second trier of the Cooper analysis is applicable here, and, if so, whether the district court erred in failing to make specific findings of prejudice.

In Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977), a panel of this Court held 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." Id., at 1165. The petitioner in Cooper, seeking post conviction relief pursuant to 28 U.S.C. § 2254, complained of various instances of allegedly ineffective representation and inadequate trial preparation, including the most serious allegation that counsel failed to move for the exclusion of evidence obtained in a questionable search of petitioner and his residence. Upon a review of the state court record and after conducting its own evidentiary hearing, the district court concluded that even if the challenged evidence was tainted by an illegal search and seizure, its introduction and use at trial was harmless error in light of the overwhelming evidence of guilt otherwise presented by the prosecution. The court thus rejected petitioner's claim to ineffective assistance of counsel on the ground that no prejudice had resulted from defense counsel's failure to move for suppression. Reversing and remanding, the appellate court found error in the trial court's approach, holding that a denial of effective assistance of counsel cannot constitute harmless error. Remand was ordered for the purpose of a factual determination as to whether petitioner had been denied his Sixth Amendment right of effective assistance of counsel.

This Court, sitting En banc, reversed the original appellate decision in Cooper. Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (En banc ). We held that "(w)hen the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel at trial, . . . relief will be granted only if it appears that the defendant was prejudiced by counsel's conduct. Id. at 1331. In so holding, this Court distinguished cases like Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), finding that they involved cases where "no counsel is provided, or coun...