Lofton v. Procunier, 73-1082.

• Citation: 487 F.2d 434
• Decision Date: 26 December 1973
• Docket Number: No. 73-1082.,73-1082.
• Parties: Wilbert LOFTON, Appellant, v. Raymond K. PROCUNIER, Director of California Department of Corrections, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

487 F.2d 434 (1973)

Wilbert LOFTON, Appellant, v. Raymond K. PROCUNIER, Director of California Department of Corrections, Appellee.

No. 73-1082.

United States Court of Appeals, Ninth Circuit.

September 17, 1973.

Rehearing and Rehearing Denied December 26, 1973.

Wilbert Lofton, in pro. per.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before ELY, WRIGHT and GOODWIN, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 26, 1973.

OPINION

ELY, Circuit Judge:

Lofton appeals from the District Court's denial of his attack, under 28 U.S.C. § 2254, upon his conviction and incarceration by California authorities. He alleged that his 1967 state conviction for burglary was constitutionally infirm because (1) he was denied the right to be represented by counsel of his choice, and (2) he was denied effective assistance of competent counsel. The District Court denied Lofton's petition after having conducted a very limited evidentiary hearing thereon.

When Lofton was charged by the California authorities in 1967, he asserted indigency, and counsel was appointed. Following entry and withdrawal of both not guilty and guilty pleas, the appointed attorney finally requested that a not guilty plea be entered and that he be relieved from continuing as attorney of record. Each motion was granted and a public defender, William O'Malley, apparently took over the defense at that time.

Six days prior to the trial date, the defense sought a continuance so that Lofton could secure the assistance of a private attorney, one Perry. Although the judge granted this continuance, he retained the Public Defender as attorney of record and specified that four weeks later, on June 19, 1967, the trial would proceed with either private defense counsel or Public Defender.

On the day set for trial, Lofton informed the judge that Perry was engaged in trial elsewhere and, in consequence, sought a short continuance. The judge denied the motion and directed that an attorney named Holt, of the Public Defender's office, immediately proceed for the defense. Apparently, Holt had not previously had any connection whatsoever with Lofton's case.

In his petition below, Lofton alleged that prior to the morning of the trial, he had had no contact whatsoever with Holt and that Holt had absolutely no familiarity with the case. He also asserted that the private counsel, Perry, had possession of several documents whose presentation was essential to an adequate defense. These allegations were supported by Holt's affidavit, declaring that the defense he conducted was not "competent".

The first contention by Lofton, that he was deprived choice of counsel, is without merit. The right to choose one's attorney is not unlimited and, if in the sound discretion of the court, the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the judge may compel a defendant to proceed with designated counsel. See Nunn v. Wilson, 371 F.2d 113 (9th Cir.1967); Arellanes v. United States, 353 F.2d 270 (9th Cir.1965), cert. denied, 385 U.S. 870, 87 S.Ct. 139, 17 L.Ed.2d 97 (1966); Relerford v. United States, 309 F.2d 706 (9th Cir.1962).

It is clear, however, that such representation cannot be coerced in circumstances in which the designated defense counsel cannot serve competently. See Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir.1962). If the requirement of adequate representation has any content whatsoever, it surely must encompass the attorney's familiarity with all essential aspects of the case. Accepting Lofton's allegations as true, as we must in the present posture of his case, the newly designated defense counsel consulted with Lofton for only ten minutes prior to trial; moreover, essential documents were not available.

The District Court's examination of the state court record convinced it that the substituted defense attorney rendered competent and effective service. Normally, such an independent review of the transcript and record would provide sufficient basis for a federal court's denial of habeas relief. Selz v. California, 423 F.2d 702 (9th Cir.1970). The case at hand, however, significantly varies from the typical situation wherein, for example, the propriety of a state court's denial of a motion to suppress can be determined from the record. The required adequacy of counsel, in contrast, can often be determined only after conducting an evidentiary hearing directed to the specific issue.

Here, the record is barren of proof that counsel was in fact competent. The most that can be gleaned from the record is that attorney Holt possibly did as well as any attorney could have done when the grave responsibility was suddenly thrust upon him without adequate opportunity for preparation. We thus conclude an evidentiary hearing must be conducted to determine whether Lofton was effectively deprived of one of his sixth amendment rights. We reiterate that, to this time, there has been no hearing in any court in which the accuracy of the representations made by Lofton and his unprepared attorney can be tested.

Upon remand, the District Court will hold Lofton's petition in abeyance for a reasonable period, not to exceed sixty days, in order to afford California the first opportunity to conduct the necessary hearing.¹

Reversed and remanded, with directions.

EUGENE A. WRIGHT, Circuit Judge (dissenting):

With due respect, I must dissent and would affirm the district court's denial of habeas corpus relief.

Lofton has challenged a 1967 state court burglary conviction on the grounds that he was denied competent counsel and the right to be represented by counsel of his choice. As I read this record, he is precluded from asserting either challenge because of his own dilatory tactics. The result reached by the majority opinion rewards him for his repeated efforts to prevent his case from ever coming to trial.

Petitioner was charged with burglary on January 19, 1967. When he was arraigned four days later and claimed indigency, counsel (Mr. Wright) was appointed to represent him and Lofton pleaded not guilty. On ...