Hall v. Sumner
| Decision Date | 27 July 1982 |
| Docket Number | No. 81-4343,81-4343 |
| Citation | 682 F.2d 786 |
| Parties | Preston HALL, Petitioner-Appellant, v. George W. SUMNER, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William M. Goodman, Topel & Goodman, San Francisco, Cal., for petitioner-appellant.
J. Patrick Collins, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.
Appeal from the United States District Court for the Northern District of California.
Before KILKENNY and HUG, Circuit Judges, BROWN *, District Judge.
Preston Hall appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In the district court, he pointed to ten separate instances of conduct by his trial attorney that he believed showed ineffective assistance of counsel. The district court denied his petition without a hearing.
On appeal, Hall limits his ineffective assistance claim to trial counsel's failure to investigate various aspects of the case, and counsel's failure to pursue diminished capacity and insanity defenses. Hall contends that the failures in those areas were the result of counsel's general unpreparedness for trial. As a result, he asserts that the district court misapplied the prejudice requirement set out in Cooper v. Fitzharris, 586 F.2d 1325, 1331-33 (9th Cir. 1978) (en banc ), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Cooper states 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 (emphasis added).
Hall's allegations of ineffective assistance are not supported by the record, however, so we do not need to reach the application of the Cooper prejudice requirement. The denial of Hall's petition is affirmed, 512 F.Supp. 1014.
The charges on which Hall was tried were the result of a consolidation of four separate cases against him. The first case arose from the December 1974 kidnapping and assault of one Shirley Wilson. The second involved witness tampering, based on threats against Wilson's life. The third involved a January 29, 1975, knife attack on Wilson. The fourth was for first degree murder, the product of a February 9, 1975, gun fight in Wilson's apartment that resulted in the death of Wilson, serious injuries to Hall, and minor injuries to a third person.
Hall was tried in October, 1975, and represented by retained counsel Larry J. Lichtenegger. He was convicted on all counts by a jury and sentenced to death. The California Court of Appeal affirmed the conviction, but modified the sentence to life imprisonment. The California Supreme Court denied review, and the United States Supreme Court denied certiorari. Hall v. California, 439 U.S. 972, 99 S.Ct. 466, 58 L.Ed.2d 432 (1978).
Because Hall raised substantially similar ineffective assistance claims in his state court appeal, it is not necessary for him to have filed a state habeas petition in order to collaterally attack his conviction in federal court. See Thompson v. Procunier, 539 F.2d 26 (9th Cir. 1976); Gonzales v. Stone, 546 F.2d 807, 808, n.2 (9th Cir. 1976); Schiers v. California, 333 F.2d 173 (9th Cir. 1964). The state court, after briefing, argument, and supplemental briefing, stated, in an unpublished opinion, that it had reviewed all of Hall's ineffective assistance claims and found them singularly and collectively meritless.
In his appeal to this court, Hall emphasizes two general areas in which he alleges Lichtenegger's lack of preparedness manifested incompetence. The first involves Lichtenegger's investigation of various factual aspects of the shooting incident. The second involves Lichtenegger's pursuit of diminished capacity and insanity defenses.
In order to establish ineffective assistance, Hall must show that Lichtenegger's performance was not that of "a reasonably competent attorney acting as a diligent conscientious advocate." Cooper v. Fitzharris, 586 F.2d at 1330. The record "must reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney." Id.
As to the alleged defects in Lichtenegger's investigation of the facts, Hall's ineffective assistance claim must fail. For the most part, his claims are utterly unsupported by the record. The record shows that Lichtenegger was struggling with an uncooperative client, uncooperative witnesses (many being relatives of the victim), a district attorney's office that required direction from the court to comply with discovery orders on more than one occasion (in fact, significant prosecution evidence was excluded at trial because of failure to comply with a discovery order), a maze of conflicting police and ballistics reports, a client with what appeared to be several more bullet wounds than was possible in light of other evidence, an unavailable surgeon who, when ultimately located, explained that the additional wounds were the result of drainage tubes implanted during surgery and removed a few days later, and a crime scene that had been re-let to tenants who were out of town attending a family medical emergency. Lichtenegger's competence and diligence were well demonstrated at trial by his clear command of the facts, his timely objections, and his presentation of a plausible alternative to the prosecution's theory of the case.
Hall's claim that Lichtenegger failed to investigate the availability of witnesses is unsupported by the record and completely unconvincing. Hall states that five eyewitnesses to the shooting, and the events leading up to it, were available but not called. There is no indication from any source, other than Hall's post-conviction statements, that these unnamed witnesses existed. Hall's statements are patently incredible. No failure to investigate potential witnesses has been demonstrated.
Hall's only allegation requiring close examination is in regard to the consolidation of the four cases against him. Lichtenegger stated on September 11 that he had not objected to the March 18 consolidation of the cases because he was unprepared to do so at that time. The district court found that Lichtenegger had not been diligent, in that he did not make a motion to sever earlier. The court found, however, that no prejudice resulted because most of the evidence relating to Hall's prior contacts with Wilson would have been admissible in the murder trial regardless of any severance of the cases.
While the result of the district court's analysis was correct, we question the need even to reach the prejudice inquiry. The district court was obliged to do so because its reading of the record indicated that Lichtenegger was unprepared to contest the consolidation when the issue was raised in March. While Lichtenegger said as much, in his September 11 effort to reopen the issue, the record does not support that explanation.
The facts and circumstances Lichtenegger presented in support of severance in...
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