Harris v. Housewright, 82-1075
| Decision Date | 28 December 1982 |
| Docket Number | No. 82-1075,82-1075 |
| Citation | 697 F.2d 202 |
| Parties | Johnny Franklin HARRIS, Appellant, v. Vernon HOUSEWRIGHT, Director, Arkansas Department of Correction, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Allan Gates (Court-appointed), Mitchell, Williams & Selig, Little Rock, Ark., for appellant.
Steve Clark, Atty. Gen. by Dennis R. Molock, Deputy Atty. Gen., Little Rock, Ark., for appellee.
Before LAY, Chief Judge, HEANEY, Circuit Judge, and HENLEY, Senior Circuit Judge.
Johnny Franklin Harris appeals from the district court's 1 denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He contends that he did not receive effective assistance of counsel in a state court jury trial in which he was convicted of aggravated robbery and murder, and sentenced to life imprisonment without parole. 2 Because we find that the performance of Harris's attorneys, when viewed as a whole, did not demonstrate the level of skill customary for reasonably competent practitioners under similar circumstances, and that Harris was prejudiced thereby, we reverse the judgment of the district court.
Harris was convicted for robbing Beulah Collins and for murdering her tenant, Joe Vinson. On August 20, 1976, two men entered the home of Collins in rural Arkansas, stole $200, beat her and Vinson, and bound them to chairs before leaving. The next day, the house caught fire. Beulah Collins escaped the fire when she was discovered by neighbors who came to extinguish the flames. The body of Joe Vinson was found inside the burned house.
On August 24, 1976, Harris was arrested for passing a bad check. At the police station, an officer noticed a gun on the passenger side floor of the truck that Harris was driving. After obtaining a search warrant, the officer seized the gun, which matched the description of a gun reported stolen in the robbery of Beulah Collins. On the same day, the police obtained a warrant to search Harris's apartment. While searching the apartment, the police found a pistol in the pocket of Curtis Fryer, Harris's alleged accomplice, who was attempting to flee the apartment. The police subsequently identified the pistol as the one stolen in the robbery of Collins.
The petitioner was charged with the robbery of Beulah Collins and the murder of Joe Vinson. The state court appointed two attorneys to represent the petitioner. At the time of their appointment as defense counsel, one attorney had been admitted to the bar eighteen months; the other had been admitted to the bar less than two weeks.
In a trial lasting two days, Harris was convicted of aggravated robbery and capital murder and sentenced to life imprisonment without parole. On direct appeal, the Arkansas Supreme Court affirmed his conviction. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). He sought post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure, and the Arkansas Supreme Court, without opinion, denied him permission to proceed under that rule. 3
Harris filed a petition seeking federal post-conviction relief pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Eastern District of Arkansas. Following an evidentiary hearing, the United States Magistrate filed a Recommended Disposition and Findings of Fact denying Harris relief. Thereafter, Harris requested an additional evidentiary hearing before the magistrate. 4 The district court denied the request and adopted without comment the magistrate's opinion.
THE RIGHT TO EFFECTIVE COUNSEL.
The Sixth Amendment guarantees every criminal defendant the right to counsel. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court recognized that the right to counsel is the right to effective counsel. Since Powell, the Court has expanded the scope of that right to effective assistance of counsel. 5 Indeed, this right may be a defendant's most fundamental right because it is essential to his or her ability to assert any other right he or she may have. See United States v. DeCoster, 487 F.2d 1197, 1201 (D.C.Cir.1973).
To establish ineffective assistance of counsel, the petitioner must show that his or her attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances. Walker v. Solem 687 F.2d 1235, 1236 (8th Cir.1982); Eldridge v. Atkins, 665 F.2d 228, 231 (8th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). Additionally, the petitioner must demonstrate that he or she was prejudiced by counsel's ineffectiveness. Id.
The level of professional competence among trial counsel generally, 6 and among the criminal defense bar in particular, 7 is a matter of concern to the bar and the judiciary. In this case, we are faced with a particularly troublesome aspect of that issue: the appointment of young and inexperienced counsel to represent a criminal defendant in a case involving a capital offense--murder. It is difficult to imagine a case which our society should accord greater importance than one in which the potential penalty is death.
Notwithstanding the seriousness of the offense charged here, at the time defense counsel were appointed to represent the petitioner, one attorney had been admitted to the bar eighteen months; the other attorney, less than two weeks. Plainly, the lack of experience of counsel is a factor that may contribute to ineffective representation. Nonetheless, in determining whether there has been effective assistance, the primary focus must be on how well counsel performed in the particular case, not on how much experience counsel has had. United States ex rel. Williams v. Twomey, 510 F.2d 634, 639 (7th Cir.), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975); Alire v. United States, 365 F.2d 278, 279 (10th Cir.1966), cert. denied, 386 U.S. 984, 87 S.Ct. 1290, 18 L.Ed.2d 233 (1967). Counsel may sometimes compensate for their lack of experience by unusual zeal and industry. 8 Moreover, courts recognize that "law school does not endow the young lawyer with all of the skills, abilities and 'know-how' of the experienced advocate" and that the young attorney "must gain experience somewhere, somehow, and sometime." Smotherman v. Beto, 276 F.Supp. 579, 589 (N.D.Tex.1967). Yet, criminal defendants should not be expected to pay the steep price of counsel's education by experience. 9
At bottom, the most serious mistake made by the petitioner's trial counsel may have been in accepting the appointment in the first instance. DR 6-101(A)(1) of the American Bar Association Code of Professional Responsibility provides:
A lawyer shall not * * * handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
A major part of the responsibility for ensuring effective counsel, however, must inhere in the appointment itself. It is the duty of the courts to ensure that effective legal counsel are appointed to represent criminal defendants. 10
THE INEFFECTIVENESS REQUIREMENT.
Viewed in totality, this case presents a picture of two young attorneys, recently graduated from law school, who were thrust by court appointment into a capital murder jury trial without sufficient experience to deal effectively with the difficult judgments that such a case necessarily entails. We recognize that counsel are presumed to have rendered effective assistance and the petitioner must overcome this presumption to establish his or her ineffective assistance claim. Eldridge v. Atkins, supra, 665 F.2d at 231; Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976). Moreover, the petitioner's burden in overcoming this presumption is a heavy one. E.g. McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir.1974). The exercise of reasonable professional judgment, even if later proven unwise, does not constitute ineffective assistance. Knott v. Mabry, 671 F.2d 1208, 1212 (8th Cir.1982); Walker v. Solem, 648 F.2d 1188 (8th Cir.1981).
In this case, Harris has overcome the presumption of effective assistance. No single error made by the petitioner's appointed counsel is of constitutional dimension. Yet, when viewed cumulatively, the multiple errors revealed in the record, as discussed below, demonstrate that counsel's total performance was below the level of professional skill customary for competent counsel similarly situated. See Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979).
It is customary in criminal appointments that counsel receive their legal fees solely from the court. In this case, however, the petitioner's appointed defense counsel requested and received a private payment of $500 from petitioner's family for legal fees in connection with defending Harris. The petitioner contends that the request and payment destroyed the attorney-client relationship of trust and confidence which is essential to effective representation. The defense counsel's conduct in requesting private payment was improper. See generally, American Bar Association, Code of Professional Responsibility, DR 2-106; American Bar Association, Standards for the Defense Function, Standard 3.3 (2d ed. 1980). The request for payment does not, however, independently establish ineffective assistance of counsel. The payment does call into question whether counsel were diligent and devoted advocates of the petitioner's case, or whether they were primarily interested in collecting a fee. Cf. Friedman v. United States, 588 F.2d 1010, 1016 (5th Cir.1979).
Prior to trial, Harris moved for a change of venue. The defense counsel offered...
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