Fitzgerald v. Estelle, 72-2459

• Citation: 505 F.2d 1334
• Decision Date: 30 December 1974
• Docket Number: No. 72-2459,72-2459
• Parties: Otis Ray FITZGERALD, Petitioner-Appellant, v. W. J. ESTELLE, Director Texas Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1334

505 F.2d 1334

Otis Ray FITZGERALD, Petitioner-Appellant, v. W. J. ESTELLE, Director Texas Department of Corrections Respondent-Appellee.

No. 72-2459.

United States Court of Appeals, Fifth Circuit.

Dec. 30, 1974, Rehearing Denied Feb. 12, 1975.

John L. Jeffers, Jr., Houston, Tex. (Court-appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., Austin, Tex., W. Barton Boling, Asst. Atty. Gen., El Paso, Tex., for respondent-appellee.

Before BROWN, Chief Judge, and RIVES, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

CLARK, Circuit Judge:

A panel of this court overturned a finding by the Texas trial and appellate habeas corpus courts and by the federal district judge that petitioner had not been denied the effective assistance of counsel at his 1954 state court trial for robbery. We agreed to rehear the cause en banc to resolve the constitutional standards which govern adjudication of claims of ineffective assistance of privately retained counsel. Those standards are set out as Part I. After a review of the records of the original trial we reverse the panel action and affirm the denial of habeas corpus relief for the reasons set out in Parts II and III.

I.

Two distinct lines of authority have developed in the circuit as to the constitutional standards by which to adjudicate claims of ineffective assistance of privately retained counsel. In one, the court holds that the effectiveness of representation by both retained and appointed counsel must be gauged by the same measure. These cases do not reason the necessity for state involvement. See Porter v. United States, 298 F.2d 461 (5 Cir. 1962); Bell v. Alabama, 367 F.2d 243, 247 (5 Cir. 1966), and Holland v. Henderson, 460 F.2d 978 (5 Cir. 1972); see also Breedlove v. Beto, 404 F.2d 1019, n. 1 (5 Cir. 1968) and Judge Rives dissent in Langford v. Alabama, 422 F.2d 760 (5 Cir. 1969). The other series of authorities do not discuss the legal gauge for minimum effectiveness Their analysis stops at the no-state-action level. These cases refuse to attribute counsel's action to the state per se, and require actual or constructive knowledge of ineffectiveness, or participation by the prosecutor or the trial judge, to meet the Fourteenth Amendment's threshold state action requirement. See Howard v. Beto, 375 F.2d 441 (5 Cir. 1967); Johnson v. Smith, 447 F.2d 985 (5 Cir. 1971) (Rule 21); Langford v. Alabama, 422 F.2d 760 (5 Cir. 1969), and McGriff v. Wainwright, 431 F.2d 897 (5 Cir. 1973). See also e.g., King v. Wainwright, 368 F.2d 57, 59 (5 Cir. 1966); Burkett v. Mayo, 173 F.2d 574 (5 Cir. 1949).

Although no attempt at harmonizing these lines has been previously made, they are not necessarily at odds. Our reconciliation stresses the importance of recognizing the constitutional framework upon which the particular claim of ineffective assistance of counsel in a state court is to be based. The first question to be asked must be whether the case involves the Fourteenth Amendment due process clause standing alone, or the Sixth Amendment right to counsel incorporated in Fourteenth Amendment due process. ¹ The conviction of a defendant after a trial that is fundamentally unfair, whatever the cause of such unfairness, violates Fourteenth Amendment due process. See e.g., the mob domination cases: Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (Holmes, J., dissenting), and Moore v. Dempsey, 26s U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); the conviction of an accused person while he is legally incompetent: Pate v. Robinson, 383 U.S. 375, 377, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); and a conviction predicated upon no evidence at all: Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Whenever a defendant has been convicted as the result of such a gross malfunction, the result is that the state's criminal justice system has operated to deny due process. Requisite Fourteenth Amendment state action is present, not because a state official knew the particulars of the unfairness or because retained counsel is deemed a state official, but because the system has failed, and the state's consequent imprisonment or fine of the defendant is fundamentally wrong. ² In the same manner, whenever a lawyer's ineffectiveness has rendered a trial fundamentally unfair, whether he be retained or appointed and whether his action or inaction was known or unknown to state trial officials, a deprivation of Fourteenth Amendment due process results from enforcement of the resultant judgment.

Moving from the Fourteenth Amendment alone to the incorporated Sixth, our decisions establish that the standard of reasonably effective assistance of counsel, most recently delineated in Herring v. Estelle, 491 F.2d 125 (5 Cir. 1974), covers a greater range of counsel errors than does the fundamental fairness standard of the due process concept solely embodied within the Fourteenth Amendment. The circumstances in which the state will be bound by retained counsel's failure to meet the Sixth Amendment standard of effectiveness (when the resulting trial cannot be characterized as fundamentally unfair) must be assessed more strictly lest we place a procedurally intolerable and practically impossible burden upon trial judges, who have no control over the selection of counsel employed by a defendant. The only reasonable judicial checkrein-- questioning of the tactics and strategy of retained counsel throughout a trial-- would freight the bench and bar alike and many times would be counterproductive for the defendant. Without such interrogation of the defendant's lawyer, the court could never know whether his actions or inactions were deliberate or forgetful, brilliant or inept.

To find state involvement in retained counsel's conduct which is adjudged to be less than reasonably effective, yet not so grossly deficient as to render the proceedings fundamentally unfair, it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained attorney's representation is so apparent that a reasonably attentive official of the state should have been aware of and could have corrected it then again the state action requirement is satisfied. ³

We agree with Judge Godbold that the ultimate contention in cases such as the instant one is that because a defendant's counsel was ineffective his trial was unfair and thus violative of Fourteenth Amendment standards. However, his conclusion that the Fourteenth Amendment state action requirement is satisfied in every ineffectiveness of retained counsel case 'because the state adjudicatory machinery is inextricably intertwined with the conduct of an accused person's retained attorney' reaches far too far. By making every action of a counsel chosen by the defendant that of the state, his reasoning places under the control of defendant or his selected attorney or both, the power to abort the proceedings by design as well as neglect. Popeko v. United States, 294 F.2d 168 (5th Cir. 1961). ⁴ In sum, whenever the actions of retained counsel operate to deprive the trial of fundamental fairness then the Fourteenth Amendment due process had been violated notwithstanding any kind of specific involvement by a particular state official. If a retained counsel's actions do not sap the proceedings' fundamental fairness, but are challenged as less than reasonably effective in violation of the Sixth Amendment, state involvement through actual or constructive awareness of the error by the judge, prosecutor, or other responsible official who could have corrected it, must be shown. In the instant case the testimony of the district attorney that he considered Fitzgerald's counsel to be ineffective dictates that their conduct be tested by the standards of Herring v. Estelle, supra.

II.

The parameters of federal judicial power to grant habeas corpus relief to a state prisoner are fixed by Congressional edict. Not only is exhaustion of state remedies required (28 U.S.C. 2254(b)), but duly made and fairly supported factual determinations in state proceedings must be presumed to be correct if based upon a full, fair and adequate hearing (28 U.S.C. 2254(d)). The District Court of Anderson County, Texas, Third Judicial District, held the only evidentiary hearing in this cause. Since no question has been raised as to the fullness, fairness or adequacy of that proceedings, ⁵ to reverse, we must find the record developed does not fairly support the factual determination of that court. ⁶

Literally using the words of our decision in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1960), the Third District Court held Fitzgerald's retained attorneys, Martin and Shown, were 'reasonably likely to render (and did render him) reasonably effective assistance' on the occasion of his questioned 1954 trial and appeal. When the underlying facts and circumstances of this proceeding are realistically viewed we find this determination is compelled, rather than merely 'fairly supported.' Fitzgerald employed these lawyers himself and never complained of their representation for seventeen years. The panel's holding that they so conducted their representation as to deprive him of assistance of counsel for his defense results from placing undue reliance upon the recollections of a prosecutor...