Harris v. Oliver

• Citation: 645 F.2d 327
• Decision Date: 18 May 1981
• Docket Number: No. 80-7240,80-7240
• Parties: Johnny HARRIS, Plaintiff-Appellant, v. Joseph OLIVER, Warden of the Holman Unit Prison et al., Defendants-Appellees. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

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.

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 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 who is not familiar with the facts and law relevant to his client's case cannot meet that required minimal level. ⁶

6. "Effective counsel includes familiarity of counsel with the case and an opportunity to investigate it if necessary in order meaningfully to advise the accused of his options."

Id. at 128 (citation omitted).

The magistrate recognized that the state court had misstated the applicable standard but held,

(I)t is the magistrate's opinion that the ultimate finding by the Circuit Court of Jefferson County that petitioner did receive reasonably effective assistance of counsel is amply supported by the record in the coram nobis proceeding....

Despite the magistrate's careful examination of the record, such a conclusion does not form sufficient basis for denial of the petition without a hearing.

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), sets forth the criteria for determining when a federal habeas court may adopt the factual findings of a state court without conducting an evidentiary hearing. ² Among the mandates defined by Townsend is that a federal hearing must be held unless the state court trier of fact has after a full hearing reliably found the relevant facts. Id. at 312-13. Accord, Thomas v. Beto, 452 F.2d 1072, 1074 n.1 (5th Cir. 1971), cert. denied, 409 U.S. 853, 93 S.Ct. 186, 34 L.Ed.2d 97 (1972); Randel v. Beto, 354 F.2d 496, 503 (5th Cir. 1965), cert. denied, 387 U.S. 935, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967). If purely historical facts are found which are uncontaminated by legal error, the federal court may rely on such state findings. Even if no express findings are made it may still be possible for the federal court to rely on facts impliedly found provided that the constitutional claim was decided on the merits. Townsend recognizes, however, that this inference of factual findings is impossible where the state court has used an incorrect legal standard:

Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner's contentions. Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing is compelled to ascertain the facts.

372 U.S. at 314, 83 S.Ct. at 757. The Court went on to note:

Of course, under Rogers v. Richmond (365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)), a new trial is required if the trial judge or the jury, in finding the facts, has been guided by an erroneous standard of law. However, there will be situations in which statements of the trier of fact will do no more than create doubt as to whether the correct standard has been applied. In such situations a District Court hearing to determine the constitutional issue will be necessary.

Id. at 315 n.10, 83 S.Ct. at 758 n.10.

The state court in the case before us made no specific findings of historical fact and its general determinations are infected by its erroneous view of the controlling legal standard:...