Kirkpatrick v. Butler, s. 88-3253
| Decision Date | 17 April 1989 |
| Docket Number | Nos. 88-3253,88-3863,s. 88-3253 |
| Citation | 870 F.2d 276 |
| Parties | Frederick KIRKPATRICK, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary and the Attorney General of the State of Louisiana, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert McGlasson, Austin, Tex., Patrick L. Durusau, Jena, La., for petitioner-appellant.
Harry H. Howard, Asst. Atty. Gen., State of La., New Orleans, La., for State of La.
William R. Campbell, Jr., Zelden & Rand, New Orleans, La., for Butler.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GEE, RUBIN, and KING, Circuit Judges.
The State of Louisiana having sentenced Frederick Kirkpatrick to death by electrocution, he seeks habeas corpus relief, contending that he was denied the effective assistance of counsel at trial when his lawyer failed to seek the suppression of evidence seized by the police from his residence. After reviewing the record, including the memoranda filed in the state and federal courts, the opinion of the Louisiana Supreme Court, the district court's two opinions, and the transcript of the evidentiary hearing held by the district court on remand, we find no violation of Kirkpatrick's constitutional right to counsel and, therefore, affirm the judgment of the district court denying him the writ.
On the night of January 27, 1982, Frederick Kirkpatrick and Charles Faulkner were in the home of Steven Radoste, who lived alone in the Pearl River area of St. Tammany Parish. During the night, Radoste was murdered: he was struck in the head twice with a heavy glass object, stabbed with a butcher knife in the abdomen and chest, and shot in the head. Radoste's house was robbed, and his pickup truck was stolen.
The following day, Royce Cooley informed Mike Hatcher, the Chief of Detectives of the Meridian, Mississippi, Police Department, that he had accompanied two people who lived in apartments below his--Frederick Kirkpatrick and Charles Faulkner--to an area just south of Meridian where he saw them burn a brown and white Ford pickup truck. Cooley also told Hatcher that one of the men had a gun and had threatened him, and that he, Cooley, had removed the radio and spare tire from the truck and placed them in his car. To corroborate Cooley's information, Hatcher went to Cooley's car where he observed the radio and spare tire. Then, guided by Cooley to a location west of Meridian, Hatcher found a brown and white Ford pickup truck still smoldering. The truck's radio was missing, and the rims of the wheels were the same style as those on the spare tire Hatcher had seen in Cooley's car. Upon returning to the police station, Hatcher swore out an affidavit:
Freddie Kirkpatrick on or about 1/28/82, in the corporate limits of Meridian, Lauderdale County, Mississippi, did unlawfully and willingly violate state stature [sic] of Mississippi (arson) ... [by] burning a brown and white Ford pickup being the property of another. This information was received from a reliable confidential informant and has proven to be factual and true. I have personally observed said truck in burned condition and smolder[ing].
Based upon this affidavit, a magistrate issued a warrant to arrest Kirkpatrick for arson.
Hatcher proceeded immediately to the apartment of Kirkpatrick's girlfriend, where he had been informed Kirkpatrick was living, to arrest Kirkpatrick. Hatcher had also been informed that Faulkner lived in an adjacent apartment. Hatcher and two officers went to Kirkpatrick's front door, while a third officer guarded the back of the building. When Hatcher knocked on the front door, Kirkpatrick's girlfriend answered and, Hatcher later testified, "tried to make out like nobody was there but her but you could hear other people in there." Hatcher announced that he had a warrant for Kirkpatrick's arrest. Apparently unaware that the police were at his front door, Kirkpatrick came to the door, pushed it open, and stepped out onto the porch, where Hatcher informed him that they had a warrant for his arrest. Kirkpatrick "smashed back and tried to go back into the house," but the police grabbed him before he could do so.
The police then conducted what they called a "sweep" through Kirkpatrick's apartment. Although they did not find Faulkner, Kirkpatrick's confederate, the police observed a number of items stacked on the floor, including two television sets, a wine rack, and some leather jackets. They did not, however, seize these items. Hatcher later testified that "Mr. Faulkner escaped by going into a closet and up into the attic and losing us that way."
After being advised of his rights, Kirkpatrick confessed that he and Faulkner had driven the truck to a remote area and that he had watched Faulkner burn it. He also stated that Faulkner possessed a .22 caliber Derringer firearm. After the truck had been identified as belonging to Radoste, the Meridian police obtained a warrant to search Kirkpatrick's apartment for evidence relating to the crimes of larceny and murder. This warrant was based, in part, upon observations made by the police officers who had entered Kirkpatrick's apartment at the time he was arrested. Police seized several of Radoste's belongings from Kirkpatrick's apartment, as well as a pair of Kirkpatrick's sneakers, the sole pattern of which was matched to a bloody footprint at Radoste's home. They later arrested Kirkpatrick for murdering Radoste.
A jury in the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana, convicted Kirkpatrick of first degree murder and sentenced him to death. The Louisiana Supreme Court affirmed his conviction and sentence. 1 After the Louisiana Supreme Court had denied his petition for rehearing, Kirkpatrick filed a petition for a writ of certiorari in the Supreme Court of the United States, but the Court denied the writ. 2 Thereafter, Kirkpatrick filed a petition for an evidentiary hearing, post-conviction relief, and a writ of habeas corpus in state district court. After holding an evidentiary hearing, the state district court denied the writ. The Louisiana Supreme Court denied Kirkpatrick's petition for a Remedial Writ.
Six days before his scheduled execution, Kirkpatrick filed an application for a stay of execution, evidentiary hearing, and writ of habeas corpus in the federal district court for the Eastern District of Louisiana, alleging 24 violations of his constitutional rights, including ineffective assistance of counsel for failing to seek the suppression of the evidence obtained from the allegedly invalid search warrant. After staying Kirkpatrick's execution and conducting an evidentiary hearing, the district court denied the writ, 3 but subsequently granted Kirkpatrick a certificate of probable cause authorizing appeal and another stay of execution.
On appeal, this court affirmed the judgment of the district court "insofar as it denie[d] relief on all of the grounds asserted except the alleged ineffectiveness of counsel, particularly in failing to seek suppression of the evidence seized in Mississippi." 4 Because the district court did not make a factual determination with regard to this claim, we vacated the judgment denying relief on this one ground, and instructed the district court to consider it on remand. Kirkpatrick filed another petition for a writ of certiorari with the Supreme Court of the United States, which the Court denied. 5
On September 18, 1986, the district court concluded, without conducting an evidentiary hearing, that Kirkpatrick had not been denied effective assistance of counsel. After considering Kirkpatrick's motion to alter or amend the judgment, the district court found that an evidentiary hearing was "necessary to determine the issues specified in the remand" and, subsequently, held a hearing "limited to the question of whether the arresting officers had probable cause to arrest [Kirkpatrick] on January 28, 1982." On November 30, 1987, the district court reaffirmed the conclusion it had reached on September 18, 1986, holding that both the arrest and the search warrant were valid, and that had Kirkpatrick's counsel attempted to suppress the evidence obtained from the search of the apartment, his motion would have been denied.
As a preliminary matter, Kirkpatrick asserts that the evidentiary hearing held by the district court on remand was inadequate: the court considered only one aspect of counsel's ineffectiveness--his failure to move to suppress evidence obtained from the search of Kirkpatrick's apartment, and did not address other aspects of counsel's ineffectiveness, including his failure to investigate the case, prepare witnesses, and construct a defense, and the conflict of interest created by his former representation of and friendship with members of the victim's family.
We originally remanded this case to the district court because
[t]he district court's conclusory review of the record pretermit[ted] the contention that we view[ed] as serious: whether the evidence obtained in the search of Kirkpatrick's residence, which established his complicity at least in robbery, would have been admitted had counsel moved to suppress it, and, if so, the effect of exclusion of that evidence. 6
The district court sought to comply with our remand order by conducting an evidentiary hearing "limited to the question of whether Kirkpatrick's lawyer's failure to move to suppress the evidence seized from his apartment violated Kirkpatrick's sixth and fourteenth amendment right to effective assistance of counsel." In its circumscribed inquiry, the court limited the evidentiary hearing essentially to the testimony of Detective Hatcher, who recounted his interaction with the informant, and what took place at Kirkpatrick's apartment when he was arrested. The court did not receive...
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