Horowitz v. Henderson
| Decision Date | 12 June 1975 |
| Docket Number | No. 74-2759,74-2759 |
| Citation | 514 F.2d 740 |
| Parties | Carey M. HOROWITZ, Petitioner-Appellee, v. C. Murray HENDERSON, Warden Louisiana State Penitentiary, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry N. Brown, Jr., Asst. Dist. Atty., Charles A. Marvin, Dist. Atty., Benton, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Barbara B. Rutledge, Asst. Atty. Gen., New Orleans, La., for respondent-appellant.
James B. Wells, Bossier City, La., for petitioner-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
Horowitz sold 2 grams of methamphetamine, a controlled dangerous substance, to two Louisiana undercover agents. The officers located Horowitz through Harold Williford. Both were charged with distribution offenses, and scheduled for separate trials in Bossier Parish, Louisiana. Williford retained an attorney whom we refer to as the attorney while Horowitz elected to have counsel appointed for him by the Court. Coincidentally, the same attorney was appointed. The District Court found his representation of Horowitz was ineffective, and we agree.
Both men were free pending trial, and met at least once to discuss their situation. It is apparent from the record that Horowitz was at least uncertain during this pre-trial period about what he should do. There is a great deal of conflicting evidence as to who talked to whom, about what, and for how long. The District Court's view of the case made detailed findings resolving these questions unnecessary. For it does clearly appear Horowitz eventually decided to plead guilty to the charge against him, and to testify on behalf of Williford at his trial to the effect that he, Horowitz, was the sole guilty party to the transaction.
The extent of the attorney's participation in this decision is, of course, disputed. Horowitz, on the one hand, contends the attorney urged his non-fee-paying client to cast himself to the wolves to save the fee-paying client. The state contends the attorney's part was purely passive that Horowitz knowing full well the potential consequences, came to his own decision and told the attorney he wanted to do all he could for Williford and the attorney then did his best for both.
The morning of Williford's trial, Horowitz pleaded guilty, and his sentencing was deferred. As a witness in Williford's defense, Horowitz testified on direct examination as planned. But on cross-examination, as should have been expected, the State explored Horowitz' testimony by asking several questions about his drug-related experiences. In response to this questioning, Horowitz was forced to reveal a rather extensive acquaintance with illegal drug activity.
Finally, when Horowitz was sentenced on his guilty plea, he suffered the maximum penalty (10 years at hard labor) even though he had no serious record of criminal convictions. 1 The record of the state habeas corpus proceeding shows the extent of Horowitz' contacts with his appointed attorney was disputed. Nevertheless, it appears quite clearly that the attorney never clearly advised Horowitz the extent to which his past criminal activity might be proved in Williford's trial. 2
At oral argument the State contended quite strongly that the District Court's granting Horowitz' petition was improper because no opportunity was given for either a hearing or oral argument. 3 While this is true, an examination of the record shows this complaint is ill-taken, because Louisiana got exactly the procedural treatment it asked for. The District Judge did order an evidentiary hearing on the ineffective-counsel issue, 4 whereupon Louisiana moved the Court to recall its order. 5 And only then expressly upon Louisiana's motion was that order recalled and vacated. 6
Horowitz' former attorney testified in the state habeas proceeding that no information came before the sentencing Judge during the Williford trial that would not have been available in any event. Louisiana does not expressly adopt that proposition, but does so implicitly. The factors a Louisiana sentencing Judge may take into account are largely undefined by express statutory or judicial pronouncement. 7 The Judge may call for a pre-sentence report, 8 but there is nothing in the record to show (i) what Horowitz' pre-sentence report showed, or (ii) what it would not have shown but for his testimony on behalf of Williford. 9
But whether or not the attorney correctly stated the law does not resolve this case. For the State has neither shown it would have presented the damaging information to the sentencing judge, nor that it knew of its existence. The long and short of it is the attorney represented two criminal defendants with differing defense postures. While we need not hold such representation is constitutionally forbidden, we certainly hold, as we have before, Porter v. United States, 5 Cir., 1962, 298 F.2d 461, full disclosure is required not only of the dual representation, but of all the likely consequences flowing from the differing defenses.
In this case the quantity and quality of information the attorney gave Horowitz is disputed. But the State has not contended Horowitz had any idea what he would be compelled to reveal during Williford's trial. Under the circumstances, the attorney was "hobbled or fettered or restrained" from pursuing "as a vigorous advocate" Horowitz' "single aim" of incurring the least possible penalty for his first recorded offense against society. Porter v. United States, supra at 463.
We do not hold the failure fully to advise Horowitz violates the Constitution per se, because we do not preclude the possibility a state in some future case could show an attorney's conduct was reasonably effective notwithstanding a similar failure-to-advise. We do hold such an inquiry would be irrelevant in this case, however, because Horowitz' counsel represented conflicting interests, and that unfairly stacked the deck against full advice before the plea was entered even if reasonably effective counsel would have neglected to do so.
Finally, our holding, at least for now, is not intended to go beyond its facts in particular the fact Horowitz' counsel was appointed, see Fitzgerald v. Estelle, 5 Cir., 1974, 505 F.2d 1334 (en banc), and the whole business was known to the State through the prosecutor and the trial judge since each could see the dual representation, knew of the plea of guilty with the prospect that Horowitz would remove the finger from Williford and in the course of doing so bare his life for all to see.
Affirmed.
1 The same Judge presided over all the proceedings described above. However, our narration should not be taken as impugning his judgment in sentencing. The sentencing Judge, even had he not presided over the Williford trial, would nevertheless have been entitled to take judicial notice of proceedings in open court. And it can hardly be argued that the United States Constitution would be offended by a sentencing Judge's considering a defendant's past criminal conduct though there have been no convictions in passing sentence judgment.
2 That testimony included the following on cross-examination:
Q And you admit you did sell them this (speed)?
A Yes sir.
Q How did you know it was speed?
A Well, I just knew it was at the time, I tasted it, I could tell.
Q You've used it before, haven't you?
A Yes sir, I knew that I had.
Q So you are experienced in this field, you know it is speed.
A Yes sir.
Q And you tasted it and you tested and you knew it was speed?
A Yes sir, I did.
Q So, you would be testifying today that these two grams that you sold these police officers are, in fact, an illegal drug?
A Yes sir.
Q What you call speed. And you can testify to that through experience?
A Yes sir.
Q What about one loose needle and a syringe, did you have that in your guitar case?
A I believe so.
Q What did you use that needle and syringe for?
A For the speed.
Q This stuff you sell right here?
A Yes.
Q Tell us how you use it?
A Tell you how I use it?
Q How do you use this needle and syringe in your speed that you sell?
A...
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