Hawkman v. Parratt

• Decision Date: 14 October 1981
• Docket Number: No. 81-1233,81-1233
• Citation: 661 F.2d 1161
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Kenneth HAWKMAN, Appellee, v. Robert PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellant.

Page 1161

661 F.2d 1161

Kenneth HAWKMAN, Appellee, v. Robert PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellant.

No. 81-1233.

United States Court of Appeals Eighth Circuit.

Submitted July 21, 1981.

Decided Oct. 14, 1981.

Paul L. Douglas, Atty. Gen., Marilyn B. Hutchinson, Asst. Atty. Gen. (argued), Lincoln, Neb., for appellant.

David J. Clegg, Western Nebraska Legal Services, Scottsbluff, Neb., for appellee.

Before LAY, Chief Judge, and STEPHENSON and McMILLIAN, Circuit Judges.

STEPHENSON, Circuit Judge.

The state of Nebraska appeals from the district court's ¹ January 20, 1981, decision which granted appellee Kenneth Hawkman's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ² We affirm the district court's decision, but find it necessary to explicate portions of the district court's legal analysis.

I. BACKGROUND

The district court, after reviewing the state court records and holding an evidentiary hearing, set forth the underlying factual circumstances as follows. On July 19 1976, Hawkman, a Sioux Indian who lived on the Rosebud, South Dakota Reservation and was then nineteen years old, was hitchhiking in the area of Valentine, Nebraska. Hawkman was accompanied by his friend Jesse Good Voice, ³ and both boys were given a ride by one Robert Pavlik. When Pavlik stopped his pickup truck to let Hawkman and Good Voice out, a struggle ensued between Pavlik and Hawkman. As a result of the struggle, Pavlik suffered a knife wound to his forearm and Hawkman was shot in his right shoulder and lung area. Shortly after the struggle ended, Hawkman, in critical condition, was taken to the Cherry County Hospital in Valentine, Nebraska. After his release from the hospital on approximately July 26, 1976, Hawkman was transported to the Cherry County Jail. Pavlik stated to police investigators that he shot Hawkman with a gun he carried in his pickup after Hawkman reached for the pickup's keys and attacked him with a knife. Two days after the incident, and while still in the Cherry County Hospital, Hawkman gave a statement to a Nebraska State Patrol Investigator ⁴ that Pavlik had given him a package of cigarettes that was in an unopened carton and that when the pickup stopped, Hawkman drew his knife to open the cigarette carton. ⁵ At that time, Hawkman stated to the investigator, Pavlik reached for a gun and the next thing Hawkman remembered was that he was outside the pickup and then shot by Pavlik. Hawkman also stated that just before Pavlik shot him he threw his knife to the ground and gave Pavlik a peace sign.

On July 21, 1976, Hawkman was charged in the Cherry County, Nebraska district court with four felony counts under Nebraska law: (1) assault with intent to rob; (2) stabbing with intent to wound and maim; (3) assault with intent to commit great bodily harm; and (4) attempt to steal an automobile. On July 28, 1976, John C. Coupland, ⁶ a Valentine, Nebraska attorney, was appointed to represent Hawkman. After a preliminary hearing was held on August 10, 1976, Hawkman was arraigned in the Cherry County district court on August 19, 1976. On Mr. Coupland's recommendation, Hawkman pleaded guilty to all four felony counts at the August 19, 1976, arraignment. On September 23, 1976, the state district court imposed sentences of five to fifteen years on each of the first three counts and one year on the fourth count, all of which to run concurrently.

After Hawkman was confined in the Nebraska State Penitentiary, he filed a pro se motion for a new trial and a request for appointment of counsel. Counsel was appointed and the motion for a new trial was denied by the Cherry County district court. The Nebraska Supreme Court affirmed, holding simply that Hawkman's motion was a nullity because it was inexcusably untimely. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90, 91-92 (1977). The court also held that the Cherry County district judge did not abuse his discretion in sentencing Hawkman. Id. at 92.

Hawkman subsequently filed a motion for state post-conviction relief which alleged he was denied effective assistance of counsel and that the multiple, four-count charges arising out of the same transaction constituted double jeopardy. The Cherry County district court denied relief after an evidentiary hearing and the Nebraska Supreme Court affirmed. State v. Hawkman, 201 Neb. 605, 271 N.W.2d 46 (1978). ⁷ The Nebraska Supreme Court found no error in the state district court's rejection of Hawkman's ineffective assistance of counsel contentions ⁸ and noted that the record did not "show any testimony bearing upon the question of what standard of performance should be expected of a lawyer with ordinary training and skill in the criminal law in his area, according to State v. Leadinghorse, (192 Neb. 485) * * * 222 N.W.2d 573 (, 577 (1974))." Id. 271 N.W.2d at 47. The court also rejected Hawkman's double jeopardy contention and concluded that the sentence imposed did not constitute multiple punishment for a single transaction because the sentences were imposed to run concurrently. Id.

On June 21, 1979, Hawkman filed a habeas corpus petition in federal district court. The federal district court correctly held that Hawkman exhausted state remedies with respect to the issues raised in his federal habeas corpus application. After an evidentiary hearing, the district court filed an opinion in which it noted Hawkman's central contention was that "he was denied effective assistance of counsel in the proceedings leading to his (state court) guilty plea, conviction and sentencing and that he was prejudiced thereby in that he was unable to make an intelligent and informed choice among his alternative courses of action." The district court then quoted DuPree v. United States, 606 F.2d 829, 830-31 (8th Cir. 1979) (per curiam), cert. denied, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980), which provides:

The standard for determining the adequacy of counsel is whether the trial counsel exercised "the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). There is a presumption that counsel has rendered effective assistance. 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). To overcome the presumption, appellant must show that: (1) there was a failure to perform an essential duty owed by the defense attorney to his client; and (2) that the failure prejudiced the defense. McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974).

After applying these legal standards to the facts presented, the district court concluded that Hawkman was not rendered effective assistance of counsel for at least three reasons. First, the court concluded that Hawkman's attorney failed to adequately investigate the facts before advising Hawkman to plead guilty. Second, the court concluded that Hawkman's attorney failed to adequately and fairly apprise Hawkman of the elements of the charges filed, potential defenses, the risks of going to trial and the consequences of pleading guilty to four felony charges. Finally, the court concluded that Hawkman's attorney failed to initiate plea negotiations and advise Hawkman of the possibility of a plea bargain despite the similarity of the four charges levied against Hawkman. The court specifically ruled that these actions and inactions of counsel violated the constitutional counsel competence standard set forth in DuPree, supra, and concluded that Hawkman was prejudiced thereby. ⁹

We agree that the three reasons enumerated by the district court warrant habeas corpus relief, but find it necessary to elaborate on the applicable legal principles and discuss each reason separately, especially the third, in order to avoid misunderstanding.

II. DISCUSSION

A. The Federal Constitutional Standard of Minimum Counsel Competence

It is clear that a defendant pleading guilty to a felony charge has a federal constitutional right to the assistance of counsel. Ford v. Parratt, 638 F.2d 1115, 1117 (8th Cir. 1981). The right to counsel, guaranteed to federal defendants through the Sixth Amendment of the United States Constitution, is a fundamental right guaranteed to state defendants through the Due Process Clause of the Fourteenth Amendment. McQueen v. Swenson, supra, 498 F.2d at 213. A state defendant has a right not only to the timely appointment of counsel, but also to assistance of counsel whose quality of performance does not fall below a minimum level of effectiveness. Ford v. Parratt, supra, 638 F.2d at 1117.

"A guilty plea is open to attack on the ground that counsel did not provide the defendant with 'reasonably competent advice.' " Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). See also McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970). The right to effective assistance of counsel is based in the United States Constitution and, therefore, our inquiry of whether effective assistance of counsel was afforded in a particular case is governed by federal standards.

In this case, the federal district court correctly set forth this circuit's legal standards for counsel effectiveness. We have repeatedly held that counsel fails to render the constitutionally required effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. See, e. g., Ford v. Parratt, supra, 638 F.2d at 1117. However, "when trial counsel makes a choice of defenses as a matter of trial strategy, even if that choice proves to be ineffective, it does not without more sustain a finding of ineffective assistance of counsel." Drake v. Wyrick, 640 F.2d 912, 915 (8th Cir. 1981). In order to prevail on an ineffective...