Harris v. Oliver, No. 80-7240

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TJOFLAT, FAY and VANCE; VANCE
Citation645 F.2d 327
Docket NumberNo. 80-7240
Decision Date18 May 1981
PartiesJohnny HARRIS, Plaintiff-Appellant, v. Joseph OLIVER, Warden of the Holman Unit Prison et al., Defendants-Appellees. . Unit B

Page 327

645 F.2d 327
Johnny HARRIS, Plaintiff-Appellant,
v.
Joseph OLIVER, Warden of the Holman Unit Prison et al.,
Defendants-Appellees.
No. 80-7240.
United States Court of Appeals,
Fifth Circuit.
Unit B
May 18, 1981.

Page 328

Allison, Soreff & Garber, Eleanore M. Garber, William H. Allison, Louisville, Ky., H. Diana Hicks, c/o Michael Avery, Boston, Mass., W. Clinton Brown, Decatur, Ala., for plaintiff-appellant.

Joseph G. L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, FAY and VANCE, Circuit Judges.

VANCE, Circuit Judge:

On pleas of guilty petitioner was convicted in the state courts of Alabama in 1971 of four counts of robbery and one of rape. He received five consecutive life sentences. At the time of his conviction each of the charges carried a maximum penalty of death. Petitioner was represented by two court-appointed attorneys who cooperated in the handling of all five cases. The sentences were agreed to by plea agreement reached when the first of the cases was called for trial on April 6, 1971 and the court was in the process of qualifying the jury.

In 1975 while petitioner was serving the sentences as an inmate in the Alabama prison system, he was convicted of murder under Ala.Code § 13-1-75 (1975) and sentenced to the mandatory death penalty prescribed by that section.

By this petition for habeas corpus petitioner seeks to have his life sentences vacated and set aside on the theory that applicability of the mandatory death penalty sentences provided in § 13-1-75 will thereby be eliminated. In a separate proceeding not now before this court, he attacks his murder conviction. 1

Prior to the filing of his petition for writ of habeas corpus in the district court, petitioner had exhausted his state remedies by petition for writ of error coram nobis. An evidentiary hearing held by the state trial court consumed five days. Its order denying relief was appealed by petitioner and affirmed. Harris v. State, 367 So.2d 524 (Ala.Cr.App.1978), cert. denied, 367 So.2d 534 (Ala.1979).

The present petition was referred by the district judge to a United States magistrate

Page 329

who, without a hearing, recommended that the petition be denied. The magistrate's detailed opinion reflected a meticulous examination of the lengthy state court record. The recommendation was adopted and approved and the district court denied the petition.

On appeal petitioner advances four primary contentions: (1) that the district court erred in finding that he had received reasonably effective assistance of court-appointed counsel in connection with his pleas of guilty; (2) that the district court's finding that his pleas of guilty were informed and voluntary was clearly erroneous; (3) that he was not afforded a full and fair hearing during the state coram nobis proceeding; and (4) that the district court abused its discretion when it denied petitioner's request for discovery. We conclude that the third of Harris' contentions necessitates a remand to the district court for an evidentiary hearing.

Our consideration centers on the state trial judge's decree dated April 19, 1978 denying the petitions for writ of error coram nobis. The state circuit judge conducted an extensive hearing, but his decree did not include explicit findings of fact. The findings were in the nature of conclusions only. Although they might otherwise be sufficient, they are flawed by the statement of applicable law recited by the state judge immediately prior to his critical finding:

In Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965), the Fifth Circuit Court of Appeals said:

It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory or without adequate opportunity for conference and preparation.

The recitation is not a correct statement of the applicable standard. The standard now recognized in this circuit is that of "reasonably effective assistance." In Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), we stated:

Reasonably effective assistance is an easier standard to meet in the context of a guilty plea than in a trial, but counsel still must render competent service. See Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. It is the lawyer's duty to ascertain if the plea is entered voluntarily and knowingly. Lamb v. Beto, 5th Cir. 1970, 423 F.2d 85, 87, cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84. See Walker v. Caldwell, 5th Cir. 1973, 476 F.2d 213; Colson v. Smith, 5th Cir. 1971, 438 F.2d 1075; O'Neal v. Smith, 5th Cir. 1970, 431 F.2d 646. He must actually and substantially assist his client in deciding whether to plead guilty. Walker v. Caldwell, supra, 476 F.2d at 224. It is his job to provide the accused an "understanding of the law in relation to the facts." Id. at 218. The advice he gives need not be perfect, but it must be reasonably competent. Colson v. Smith, supra, 438 F.2d at 1081 n.5. His advice should permit the accused to make an informed and conscious choice. Id. at 1079. In other words, if the quality of counsel's service falls below a certain minimum level, the client's guilty plea cannot be knowing and voluntary because it will not represent an informed choice. And a lawyer...

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98 practice notes
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 8, 1984
    ...question of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Harris v. Oliver, 645 F.2d 327, 330, n. 3 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981). Therefore this Court has held that a state court's det......
  • Washington v. Strickland, No. 81-5379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 23, 1982
    ...v. Balkcom, 661 F.2d 391, 394 n. 5 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Harris v. Oliver, 645 F.2d 327, 330 n. 3 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981); Mason v. Balcom, 531 F.2d 717, 721-22 (5th Moreover......
  • Goodwin v. Balkcom, No. 81-7132
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 3, 1982
    ...court's resolution of this question is not entitled to a presumption of correctness under 28 U.S.C.A. § 2254(d) (1976). Harris v. Oliver, 645 F.2d 327, 330 n.3 (5th Cir. 1981). Therefore, we are not bound by the state court's finding that Goodwin's trial counsel rendered effective assistanc......
  • Washington v. Strickland, No. 81-5379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 23, 1982
    ...of validity under 28 U.S.C. § 2254(d) (1976). The contention, however, is completely rebutted by such cases as Harris v. Oliver, 645 F.2d 327, 330 n.3 (5th Cir. 1981), and Mason v. Balcom, 531 F.2d 717, 721-23 (5th Cir. 1976), which hold that because the question whether a defendant has rec......
  • Request a trial to view additional results
98 cases
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 8, 1984
    ...question of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Harris v. Oliver, 645 F.2d 327, 330, n. 3 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981). Therefore this Court has held that a state court's det......
  • Washington v. Strickland, No. 81-5379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 23, 1982
    ...v. Balkcom, 661 F.2d 391, 394 n. 5 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Harris v. Oliver, 645 F.2d 327, 330 n. 3 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981); Mason v. Balcom, 531 F.2d 717, 721-22 (5th Moreover......
  • Goodwin v. Balkcom, No. 81-7132
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 3, 1982
    ...court's resolution of this question is not entitled to a presumption of correctness under 28 U.S.C.A. § 2254(d) (1976). Harris v. Oliver, 645 F.2d 327, 330 n.3 (5th Cir. 1981). Therefore, we are not bound by the state court's finding that Goodwin's trial counsel rendered effective assistanc......
  • Washington v. Strickland, No. 81-5379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 23, 1982
    ...of validity under 28 U.S.C. § 2254(d) (1976). The contention, however, is completely rebutted by such cases as Harris v. Oliver, 645 F.2d 327, 330 n.3 (5th Cir. 1981), and Mason v. Balcom, 531 F.2d 717, 721-23 (5th Cir. 1976), which hold that because the question whether a defendant has rec......
  • Request a trial to view additional results

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