Kramer v. Butler

• Decision Date: 26 May 1988
• Docket Number: No. 87-3628,87-3628
• Citation: 845 F.2d 1291
• Parties: Charles KRAMER, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1291

845 F.2d 1291

Charles KRAMER, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees.

No. 87-3628

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 26, 1988.

Robert F. Barnard, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, La., for petitioner-appellant.

Dorothy A. Pendergast, John J. Molaison, Jr., Asst. Dist. Attys., John M. Mamoulides Dist. Atty., Research & Appeals Office, Gretna, La., for respondents-appellees.

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

Before GEE, GARWOOD, and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Charles J. Kramer, Jr. (Kramer) appeals the district court's dismissal of his petition for writ of habeas corpus challenging his 1974 Louisiana second degree murder conviction. We affirm.

Facts and Proceedings Below

On March 22, 1974, an indictment was filed charging Kramer with first degree murder. At the request of Kramer's attorneys, the Louisiana trial court appointed a sanity commission pursuant to articles 643-644 of the Louisiana Code of Criminal Procedure. On April 18, 1974, this commission reported its findings to the court. Based on these findings, the Louisiana court determined that Kramer was sane at the time the crime was committed and that he was competent to stand trial. Subsequently, Kramer's attorneys filed a motion for additional psychiatric tests. The court eventually granted this motion, and thereafter a third physician undertook a psychiatric examination of Kramer. On July 24 through July 26, 1974, Kramer was tried before a jury on the first degree murder charge. During the trial, no evidence of insanity was tendered; the defense was instead based on self-defense. On July 26, 1974, Kramer was found guilty of second degree murder and was sentenced to life imprisonment. This conviction was subsequently affirmed on appeal without opinion. See State v. Kramer, 354 So.2d 1351 (La.1978).

In 1980, Kramer, pro se, filed a habeas petition in the court below challenging his second degree murder conviction on the basis of claims that his confession was coerced and that testimony as to other crimes were erroneously admitted in evidence at his trial. In January 1981, that petition was dismissed on the merits, Kramer appealed, and the dismissal was affirmed by this Court in an unpublished opinion. Kramer v. Maggio, 680 F.2d 1388 (5th Cir.1982) (table).

Afterwards, Kramer attempted to further collaterally attack his conviction by filing two petitions for a state writ of habeas corpus. However, the Louisiana Supreme Court denied both of these petitions without opinion. See State ex rel. Kramer v. Blackburn, 475 So.2d 776 (La.1985) ("Relator must first file in district court."); State ex rel. Kramer v. Maggio, 458 So.2d 114 (La.1984).

On June 5, 1986, Kramer filed the instant habeas corpus petition in the court below. He alleged four grounds for relief: (1) denial of a fair competency hearing; (2) ineffective assistance of counsel at the competency hearing and at trial for not developing an insanity defense; (3) failure to prove that he had the requisite intent for second degree murder; and (4) failure to prove the corpus delicti of the offense. On August 8, 1986, the state filed an answer resisting the writ; as to grounds (3) and (4) the state relied, among other things, on claimed abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. foll. Sec. 2254). The public defender was appointed to represent Kramer on August 27, 1986, and at that time the case was set for evidentiary hearing on January 7, 1987. Pursuant to the August 27 order, a pretrial conference was also held December 29, 1986. On January 7, 1987, the scheduled evidentiary hearing was held on all issues before a magistrate. Several witnesses, including Kramer, testified at this hearing, and documentary evidence was introduced. At the conclusion of the hearing, the case was orally argued to the magistrate. During that argument, Kramer's counsel, after conferring with him, withdrew the first ground for relief, and also moved that the magistrate order that an electroencephalogram be taken of Kramer, which motion the magistrate orally denied. Later that day, the magistrate issued an order reciting that the first ground for relief had been withdrawn, and ordering the parties to submit briefs by not later than February 17. On January 8, 1987, the magistrate approved Kramer's motion that $200 be paid to the doctor who had examined Kramer at his counsel's request for purposes of the hearing.

On February 5, 1987, Kramer filed a motion to dismiss without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). On February 25, a hearing was held on this motion. At the hearing, the state objected to the motion, noting that it had filed an answer and did not consent to dismissal, that an evidentiary hearing had already been held, and that considerable funds had been expended to transport Kramer between the penitentiary and the courthouse. On March 30, 1987, the district court denied Kramer's motion to dismiss, pointing out that all that remained to be done was for the magistrate to file his recommendations and the court to act on them. In a supplemental memorandum filed May 11, 1987, Kramer, through counsel, abandoned his third asserted ground for relief. ¹ On June 12, 1987, the magistrate submitted his findings and recommendations to the court. The district court approved these recommendations and on August 10, 1987, entered judgment dismissing Kramer's petition for federal habeas relief. This appeal followed.

Discussion

In his appeal, Kramer raises only two issues. The first is whether he was denied the effective assistance of counsel at his state trial. The burdens that a habeas petitioner must carry to obtain relief on this Sixth Amendment claim are well-settled. First, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In this connection, the petitioner must identify the particular acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. See id., 104 S.Ct. at 2066. In ruling on the petitioner's claim, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 2065. Second, the petitioner must show that the deficient representation was materially prejudicial to him. To show prejudice, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. A "reasonable probability" is one sufficient to undermine confidence in the outcome. See id. Unless the petitioner makes both showings, he is not entitled to relief. See Thomas v. Lynaugh, 812 F.2d 225, 229 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987). The magistrate, following the evidentiary hearing, determined that counsel's performance was not deficient and that Kramer had failed to demonstrate prejudice. The district court likewise found that counsel was not deficient, but did not address the issue of possible prejudice.

In his brief on appeal, Kramer identifies only one area in which his attorneys allegedly denied him effective assistance: their handling of his insanity defense. Specifically, Kramer argues that by not pursuing all possible leads in connection with a potential insanity defense--in particular, by not ensuring that Kramer was tested for temporal lobe epilepsy, a possible cause of "blackouts" or "temporary psychoses"--his attorneys failed to provide him with effective assistance. We reject this argument. To begin with, Kramer's attorneys proved themselves quite diligent in pursuing a potential insanity defense for him. Not only did they request appointment of a sanity commission pursuant to articles 643-644 of the Louisiana Code of Criminal Procedure, but when the findings of that commission turned out to be unfavorable to Kramer, the two psychiatrists who composed the commission having determined that Kramer was not insane at the time of the crime, Kramer's attorneys successfully moved the court to appoint a third psychiatrist to examine him. After this psychiatrist also determined that Kramer was not insane at the time the crime was committed, Kramer's attorneys decided that an insanity defense was untenable and turned instead to the defense of self-defense. Given that Kramer's attorneys were unable to uncover any facts that would support an insanity defense for him, their decision to abandon that defense can hardly be said to be objectively unreasonable.

At the evidentiary hearing held on January 7, 1987, Kramer presented evidence that he might have suffered from temporal lobe epilepsy at the time of the crime and that this form of epilepsy might have caused him to "black out." He concludes that his attorneys acted unreasonably in not ordering that he undergo a brain scan, which is what would have been required to determine whether he had this malady. However, Kramer had never informed his state trial attorneys that he might be prone to having "blackouts," let alone that he might have experienced one at the time of the crime. Not having been informed that Kramer might have suffered from such a malady, Kramer's attorneys can hardly be faulted for not ordering a brain scan to determine whether it existed. Moreover, there is no evidence that any of the doctors who examined Kramer prior to his state trial even suggested that such a test might be desirable. Certainly, in the context of this case, counsel did not...