Lockhart v. McCotter

• Decision Date: 18 February 1986
• Docket Number: No. 84-1901,84-1901
• Parties: Thaddeus Michael LOCKHART, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1275

782 F.2d 1275

Thaddeus Michael LOCKHART, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, et

al., Respondent-Appellee.

No. 84-1901.

United States Court of Appeals, Fifth Circuit.

Feb. 18, 1986.

Jackson, Walker, Winstead, Cantwell & Miller, Jeffrey E. Oleynik, (Court-appointed--Not Under Act), Dallas, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, RANDALL, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Thaddeus Michael Lockhart appeals the federal district court's denial of Lockhart's petition for habeas corpus relief. 28 U.S.C. Sec. 2254. Lockhart contends that he is entitled to habeas corpus relief on the grounds that he was deprived of effective assistance of counsel both at trial and on appeal. Perceiving no reversible error in the federal magistrate's findings and recommendations, which were adopted by the district court, we affirm.

I. BACKGROUND

Lockhart was arrested and ultimately convicted of aggravated robbery in Dallas, Texas. On the day of his arrest, April 2, 1976, Lockhart had worked distributing hand circulars and been paid $18.00. After work, Lockhart spent several hours at the Stop-In Cafe in North Dallas. Lockhart testified at trial that he left the cafe at approximately 11:00 p.m. following an argument with a prostitute.

At approximately the same time that Lockhart left the Stop-In Cafe and in that same neighborhood, James Hall, who had also just left the Stop-In Cafe, was robbed. According to Hall, a man put a knife to Hall's throat and demanded Hall's money. After giving the man his wallet, which contained $30.00, Hall was released. Hall immediately ran to a pay phone and called the police.

When police officers arrived, Hall told the officers that his assailant was about 5 feet, 11 inches tall, weighed 170 pounds, and was wearing a red windbreaker and blue pants. Hall then accompanied the officers to search for the robber. Approximately one block from the Stop-In Cafe, the police encountered Lockhart, who was wearing a red windbreaker and blue trousers, walking along the street. The police officer who spotted Lockhart asked Hall, "Is that him?" In response, Hall identified Lockhart as the robber and, after Lockhart had been stopped and searched, identified a knife taken from Lockhart as the one used in the robbery. Although the police found $12.00 in Lockhart's pants, they could not recall whether they had also discovered Hall's stolen wallet at the time of Lockhart's arrest. ¹

The police took Lockhart to the Dallas City Jail where he was strip searched and booked. After Lockhart was searched, a "purse", keys, two necklaces and $1.06 were inventoried and placed in a personal property envelope to be held for Lockhart. Two knives along with $12.00 in cash which had also been found on Lockhart when he was searched were held by the police as evidence.

Several months after Lockhart's arrest and subsequent transfer to the Dallas County Jail, Dallas County prosecutor Rider Scott asked police investigator William C. Kelley to search Lockhart's personal property envelope. Scott had noticed that a "purse" had been taken from Lockhart and speculated that the inventoried "purse" could be the wallet taken in the robbery. Officer Kelley searched Lockhart's personal property envelope and located a wallet which was in fact later identified at trial as belonging to the robbery victim James Hall.

On May 10, 1976, Lockhart was indicted by a Dallas County Grand Jury for aggravated robbery. ² Three days later, Dallas attorney Don G. Smith was appointed to represent Lockhart. Smith was unsuccessful in persuading Lockhart to accept a plea bargain and on January 5, 1977, Lockhart's trial was held.

At trial, the State produced three witnesses. First, the robbery victim James Hall testified identifying Lockhart as the man who had robbed Hall on April 2, 1976. The arresting officer, Larry Davis, also testified giving a detailed account of the events which had occurred after he was called to investigate Hall's robbery. Davis also identified the two knives taken from Lockhart at the time of the arrest. The final prosecution witness, Officer Kelley, produced the wallet recovered from Lockhart's personal property envelope. The State recalled James Hall who identified the wallet and two pictures, one of Hall's girlfriend ³ and the other of her children, which were contained in the wallet.

Lockhart's attorney, Don Smith, both cross-examined and recalled each of the State's witnesses attempting to exploit whatever gaps existed in their testimony. In particular, Smith attempted to undermine Hall's identification of Lockhart as the robber. Smith also pointed out to the jury that no State witness had testified that Hall's wallet had actually been recovered from Lockhart at the time of Lockhart's arrest. Smith did not call any additional witnesses. However, contrary to Smith's advice, Lockhart testified on his own behalf. Lockhart denied having committed the robbery and asserted that the wallet had been planted in his personal property envelope. The State impeached Lockhart's testimony with evidence of two prior felony convictions, one in South Carolina and the other in New York.

After hearing closing arguments, the jury returned a guilty verdict. Lockhart had earlier elected to have the trial court judge assess punishment. After conducting a sentencing hearing, the court sentenced Lockhart to confinement for forty-five years in the Texas Department of Corrections.

Attorney Steven G. Condos was appointed to represent Lockhart on appeal. Based on his conclusion that there were no nonfrivolous grounds upon which to base an appeal, Condos filed an "affidavit of counsel" stating that Lockhart's appeal had no merit. Condos then sent Lockhart a letter, dated August 25, 1977, explaining what he had done and informing Lockhart that Lockhart could obtain the trial transcript and file a pro se appellate brief. On October 5, 1977, the Texas Court of Criminal Appeals affirmed Lockhart's conviction.

Lockhart filed the instant case asserting, in part, ineffective assistance of counsel both at trial and on appeal on February 1, 1979, in federal district court. An amended complaint and petition for habeas corpus relief were filed in federal district court on March 21, 1980. On January 28, 1981, the district court held an evidentiary hearing concerning Lockhart's request for habeas corpus relief. Following that hearing, the federal district court dismissed without prejudice Lockhart's habeas corpus application on the ground that Lockhart had not exhausted state remedies. ⁴

Lockhart then filed an application for a writ of habeas corpus ⁵ in the 194th Judicial District Court in and for Dallas County. An evidentiary hearing was conducted before a state magistrate who made findings of fact and conclusions of law recommending that the writ be denied. In particular, the state magistrate concluded that Lockhart had not been denied effective assistance of counsel either at trial or on appeal. The state district judge adopted the magistrate's recommendation and the denial of Lockhart's writ was affirmed by the Texas Court of Criminal Appeals without written opinion.

Lockhart again petitioned the federal district court for habeas corpus relief repeating his earlier ineffective assistance of counsel claims. ⁶ An evidentiary hearing was conducted regarding those claims before a federal magistrate on April 18, 1984. The parties stipulated that the magistrate could consider: (1) depositions taken in the case; (2) testimony taken in the earlier evidentiary hearing conducted in 1981 before the federal district court; and (3) testimony presented in an evidentiary hearing conducted before the state magistrate. Neither party offered additional testimony before the federal magistrate.

On January 11, 1984, the federal magistrate entered findings of fact and conclusions of law and recommended that Lockhart's application for a writ of habeas corpus be denied. The federal district court adopted the magistrate's findings and conclusions and entered judgment on September 17, 1984, denying Lockhart's habeas corpus petition.

Lockhart filed a timely notice of appeal and this Court granted Lockhart's application for leave to proceed in forma pauperis and for a certificate of probable cause.

II. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

Lockhart first contends that he was deprived of effective assistance of counsel at trial. Lockhart contends that his trial counsel was ineffective because he (1) failed to object to introduction of Hall's wallet into evidence; (2) failed to file necessary pretrial motions; and (3) failed to adequately investigate the case. Although the issue is close, we agree with the federal district court that Lockhart was not deprived of effective assistance of counsel at trial.

A. The Applicable Standards

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court held that "[t]he bench mark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The Supreme Court established a two-pronged test for determining the effectiveness of counsel's performance:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced...