Kennedy v. Maggio

• Decision Date: 21 February 1984
• Docket Number: No. 82-3584,82-3584
• Parties: Jimmie Dewain KENNEDY, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 269

725 F.2d 269

Jimmie Dewain KENNEDY, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 82-3584.

United States Court of Appeals Fifth Circuit.

Feb. 21, 1984.

Herbert Lawson, Asst. Federal Public Defender, New Orleans, La., for petitioner-appellant.

Abbott J. Reeves, Asst. Dist. Atty., Gretna, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN and RANDALL, Circuit Judges, and HUNTER ^*, District Judge.

RANDALL, Circuit Judge:

Petitioner Jimmie Kennedy appeals from the district court's denial of his habeas corpus petition. Kennedy was indicted in Louisiana state court for attempted murder and aggravated rape. As a result of plea negotiations, the attempted murder charge was dropped and he pleaded guilty to aggravated rape. He was sentenced to life imprisonment. He now contends that he was not afforded effective assistance of counsel, thus rendering his guilty plea involuntary. For the reasons set forth below, we reverse the decision of the district court and order that the writ be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Kennedy was indicted on November 14, 1972. He requested and received court-appointed counsel. Shortly before his scheduled trial, Kennedy substituted for appointed counsel a retained attorney, Milton Masinter. Masinter entered into plea negotiations with the district attorney, which resulted in Kennedy's guilty plea, on September 10, 1973, to aggravated rape, for which he was sentenced to life imprisonment.

Kennedy's state habeas corpus petition was denied, whereupon he filed the instant section 2254 action. ¹ The district court initially dismissed his petition without a hearing. On appeal, 638 F.2d 245, we vacated the district court's decision and remanded the case for further proceedings. See Record Vol. I at 103-05. On remand, an evidentiary hearing was held before a magistrate, who recommended that the petition be denied. After a further hearing, the district court adopted the magistrate's recommendation and again dismissed the petition.

The hearings held by the district court demonstrated that both Masinter and the state trial judge assumed that the death penalty was available and applicable in Kennedy's case, and that Masinter so advised Kennedy. See Record Vol. II at 7 (testimony of Judge Hillary Crain); 19, 21 (testimony of Milton Masinter). Kennedy testified repeatedly at the hearings that he pleaded guilty to avoid the possible imposition of the death penalty, which Masinter had told him could result if he went to trial and was convicted, and that he would not have so pleaded had he known the death penalty was unavailable. See, e.g., Record Vol. II at 52, 53, 64-65, 67, 68, 69, 74, 94, 96, 97 (testimony of Jimmie Kennedy).

In dismissing Kennedy's petition, the district court specifically found that Kennedy's guilty plea was induced by the erroneous belief, based on Masinter's advice, that he was avoiding a possible death penalty by his plea. Despite this finding, the district court considered Jackson v. Estelle, 548 F.2d 617 (5th Cir.1977), to pose an "insurmountable hurdle" to Kennedy's claim, thus mandating dismissal. See Record Vol. I at 222-25.

II. THE LOUISIANA STATUTE, FURMAN v. GEORGIA, and SINGLETON.

At the time of Kennedy's plea, the Louisiana aggravated rape statute provided:

Whoever commits the crime of aggravated rape shall be punished by death.

La.Rev.Stat.Ann. Sec. 14:42 (West 1974), amended by Acts 1978, No. 239, Sec. 1. Pursuant to La.Code Crim.Pro.Ann. art. 817 (West 1966), amended by Acts 1972, No. 502, Sec. 1, however, a verdict of guilty in such a case could be qualified by the jury's addition of the words, "without capital punishment," in which case the defendant was sentenced to life imprisonment. Kennedy's plea of guilty was a "qualified plea" in that he entered his plea with the understanding that he would be sentenced to life imprisonment.

Although the Louisiana statute imposing the death penalty for aggravated rape had not been legislatively repealed at the time Kennedy entered his guilty plea, it can not be seriously disputed that Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had effectively abrogated Louisiana's statutory capital punishment scheme at that time. Among the statutes under scrutiny in Furman, and held there to be unconstitutional, was a Texas statute that vested in the jury the discretionary power to impose the death penalty upon returning a verdict of guilty in a case of rape. ² The Louisiana statute under which Kennedy was charged was similar; moreover, in State v. Singleton, 263 La. 267, 268 So.2d 220 (1972), the Louisiana Supreme Court acknowledged that Furman had effectively dealt the death blow, as it were, to capital punishment for aggravated rape under the then-current Louisiana law. ³ See also State v. Poland, 263 La. 269, 268 So.2d 221 (1972) (setting aside death sentence for murder in light of Furman ); State v. Flood, 263 La. 700, 269 So.2d 212, 214 (1972) (no capital offenses in Louisiana in light of Furman ); State v. Holmes, 263 La. 685, 269 So.2d 207, 209 (1972) (imposition of Louisiana death penalty held unconstitutional in Furman ).

III. INEFFECTIVE ASSISTANCE OF COUNSEL.

Kennedy contends that he was denied the right to effective assistance of counsel because he was incorrectly advised that the death penalty was available in his case. The sixth and fourteenth amendments guarantee the defendant in a state criminal trial the fundamental right to effective assistance of counsel. Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir.1983); Vela v. Estelle, 708 F.2d 954, 961 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 736, 78 L.Ed.2d ---- (1983). This guarantee does not demand error-free representation, see Hayes v. Maggio, 699 F.2d 198, 201 (5th Cir.1983), but it does mandate that the defendant be represented by "counsel reasonably likely to render and rendering effective assistance." Vela v. Estelle, 708 F.2d at 961. This standard has resulted in our insistence that "effective counsel conduct a reasonable amount of pretrial investigation," Washington v. Strickland, 693 F.2d 1243, 1251 (5th Cir.1982) (en banc), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983), including, where necessary, an adequate amount of legal research. See Cooks v. United States, 461 F.2d 530, 532 (5th Cir.1972).

We have also stated that, while good faith errors by counsel do not necessarily deprive a defendant of adequate representation,

significant misleading statements of counsel can rise to a level of denial of due process of law and result in vitiation of the judicial proceeding because of ineffective assistance of counsel.... Where counsel has induced defendant to plead guilty on the patently erroneous advice that if he does not do so he may be subject to a sentence six times more severe than that which the law would really allow, the proceeding surely fits the mold we describe as a "farce and a mockery of justice."

Cooks v. United States, supra, at 532 (citations omitted) (emphasis in original). ⁴ Assistance is not rendered ineffective if, while correct when given, counsel's advice is subsequently proved to be inaccurate. Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970); Cooks, supra. However, with regard to the current state of the law in relation to the facts of a given case, counsel must render advice sufficient to allow the accused to make an "informed and conscious choice." Herring v. Estelle, 491 F.2d 125, 128 (5th Cir.1974).

Finally, we note that a finding of ineffective assistance alone does not entitle the defendant to relief. He must further demonstrate that his counsel's inadequacy "worked to his actual and substantial disadvantage." Washington v. Strickland, 693 F.2d at 1258 (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982)).

Application of these standards to the facts before us compels the conclusion that Kennedy was denied effective assistance of counsel. He was counseled, despite Furman v. Georgia and Singleton, that the death penalty was available for the crime with which he was charged. As we stated in Cooks, "although counsel need not be a fortune teller, he must be a reasonably competent legal historian. Though he need not see into the future, he must reasonably recall (or at least research) the past...." 461 F.2d at 532. Such research is not demonstrated in this case. The import of Singleton, which followed Furman by four months and preceded Kennedy's guilty plea by ten months, was unmistakable. No clairvoyance or fortune-telling was required for Kennedy's attorney and the trial judge to appreciate the then-current state of the law in Louisiana. Moreover, although the state asserts that Kennedy has failed to demonstrate any "actual, adverse impact on the fairness of his trial" as a result of ineffective assistance of counsel, we think it is abundantly clear that such unfairness resulted. A plea of guilty that is based on the fear of a non-existent penalty can be neither knowing nor intelligent, and this flaw colors the fundamental fairness of the entire proceeding. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

While the state's brief is not entirely clear on this issue, it does acknowledge that "[i]nasmuch as the death penalty had been found unconstitutional in Furman v. Georgia, the Louisiana Supreme Court has remanded cases where death had been imposed for resentencing to life imprisonment. See State v. Singleton...." Brief for Appellee at 4-5. However, the state goes on to assert that "[t]he advice by [Kennedy's] counsel that the defendant might receive the death penalty was in accordance with the state of the law on that date." Brief for Appellee at 9. To the extent that this...