Lombard v. Lynaugh

Decision Date06 April 1989
Docket NumberNo. 86-2852,86-2852
Citation868 F.2d 1475
PartiesErnest James LOMBARD, Jr., Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Randy Schaffer, Houston, Tex., for petitioner-appellant.

Margaret Portman Griffey, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GOLDBERG, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Ernest James Lombard, Jr. (Lombard), a Texas prisoner, appeals the district court's denial of his petition for habeas corpus relief under 28 U.S.C. Sec. 2254. For the reasons set forth below, we reverse the district court's denial of Lombard's petition and remand with instructions to grant relief.

Facts and Proceedings Below

Lombard was charged in a Texas court with the October 4, 1971 robbery by assault of Iva Kennedy (Kennedy). In 1973, Lombard entered a plea of not guilty and his case was set for trial by jury. At the commencement of voir dire, the trial court, calling the case for trial, stated, apparently in the presence of the jury panel, that Lombard was "charged with assault as habitual offender," and after the jurors were selected and sworn, but before evidence commenced, the state record reflects that "the indictment was read to the jury by the Assistant District Attorney." The indictment alleged the primary offense and also two prior felony convictions for the purpose of enhancement.

During the trial, Kennedy, her husband, and her maid identified Lombard as one of three individuals who robbed Kennedy in her home on October 4, 1971. Kennedy stated that Lombard and the two other men drove up to her house in a City of Houston Water Department truck and posed as employees of the Water Department to gain entry into the house. Thomas Fram, an employee of the Houston Water Department, testified that on the morning of the robbery, Lombard and two other men pointed a gun at him and forced him to surrender the Water Department truck that he was driving.

Lombard did not testify, nor did he present evidence. After the trial, the jury found him guilty on November 13, 1973. Thereafter, in January 1974, the court sentenced him to sixty-five years' confinement in the Texas Department of Corrections.

Lombard, on the day he was sentenced, filed an affidavit of indigency and requested that counsel be appointed to represent him on appeal. John Cahoon, Sr. (Cahoon), who had represented Lombard at trial pursuant to court appointment, was appointed on January 24, 1974 to represent him on appeal. 1 On appeal, Cahoon submitted a two-page appellate brief, which was filed with the trial court on February 6, 1975 and with the Texas Court of Criminal Appeals on October 15, 1975. This brief consists entirely (apart from caption, title, signature and certificate of service) of the following:


"Now comes ERNEST JAMES LOMBARD, JR., the Appellant in the above-numbered and entitled cause, and respectfully submits to this Honorable Court, DEFENDANT'S TRIAL BRIEF ON APPEAL, by and through his attorney, JOHN E. CAHOON, SR., appointed by the Court and would respectfully show unto the Court the following:

"The Appellant stands convicted in one (1) cause, to-wit: No. 179,796, entitled the State of Texas vs. Ernest James Lonbard [sic ], Jr., the punishment assessed in a trial by a Court, on a plea of not guilty was sixty-five (65) years confinement in the Texas Department of Corrections; this was after the Defendant had been found guilty in a trial to a jury. This was an enhancement case pursuant to Article 62, V.A.P.C. The State also proved, at the punishment hearing, that the Appellant had been convicted of two prior felony criminal offenses.


"The Appellant was represented at trial by appointed counsel, JOHN E. CAHOON, SR., and that following his conviction, JOHN E. CAHOON, SR., was appointed at Appellant's request as Appellant's Attorney on appeal.


"After a diligent study of the Transcript and Statement of Facts in this cause, counsel for Appellant is of the opinion that Appellant's trial and subsequent conviction was conducted as provided by the Constitutions of the Sovereign State of Texas and of the United States of America, and that all of the rights and privileges guaranteed to the Appellant were invoked in his behalf. Counsel for Appellant is unable to, in good faith, urge upon this Court any Points of Error that would require the reversal of Appellant's conviction.


"Counsel for Appellant respectfully submits that he has diligently reviewed the record in this cause and the law applicable thereto and is of the opinion that the Appellant's Appeal is without merit. Further, that the Appellant has received all that he is entitled to receive by way of Court appointed counsel for purposes of the Appeal, (Anders vs. State of California), that the Counsel is of the opinion that had he been employed by the Defendant and paid a usual and customary fee for the services rendered or to be rendered that he would in all good conscience be required to advise Appellant that his appeal from the Judgment and Sentence in this cause is without merit.

"WHEREFORE, PREMISES CONSIDERED, the Appellant's Attorney on appeal, prays that this Honorable Court accept this brief.

"Respectfully submitted,"

A copy of this brief was served on Lombard. The state's reply brief was filed with the trial court in August 1975, being then served on Cahoon and on Lombard personally, and with the Court of Criminal Appeals on October 16, 1975. 2 This three-page brief merely stated in conclusory form that the brief submitted by Cahoon was correct and that the conviction and sentence should be affirmed. The last page of the brief advised Lombard (as Cahoon had apparently not) that he was entitled to himself file a pro se brief and that if he wished to do so a copy of the record would be furnished him.

After filing his above-referenced brief, Cahoon apparently took no further action in the case. Lombard never filed a pro se brief.

The record was filed with the Court of Criminal Appeals on October 16, 1975, and on December 17, 1975, it issued an unpublished per curiam opinion affirming the conviction and sentence, noting that after examination of the record and Cahoon's brief it found that "the appeal is wholly frivolous and without merit," and that there was "nothing in the record that should be reviewed as unassigned error in the interest of justice."

The court observed that while Cahoon's brief did not advance any arguable grounds of error, it did contain "a professional evaluation of the record" demonstrating why there were no such grounds. The court thus found that the brief met the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 3

Lombard subsequently challenged the conviction in two separate state court habeas corpus applications. In these applications, Lombard alleged that he was denied due process and a fair trial because the trial court advised the jury panel at the commencement of the voir dire examination that Lombard was charged as an habitual offender. He also alleged that he was denied effective assistance of counsel at trial because, among other things, Cahoon failed to object to: (1) the trial court's comment to the jury panel that Lombard was charged as an habitual offender; (2) testimony that Lombard committed an extraneous armed robbery of the Houston Water Department employee; and (3) the omission from the jury charge of an element of the offense, namely, that the complainant owned the property that was stolen. Lombard also alleged that he was denied effective assistance of counsel on appeal because Cahoon filed a deficient "frivolous appeal" brief that failed to raise the above points of error that would have entitled him to a reversal of the conviction. According to Lombard, Cahoon's two-page appellate brief "was tantamount to no brief at all."

The Court of Criminal Appeals denied both applications for habeas relief without opinion. 4 When the applications were denied by the state court, Lombard filed the present petition for federal habeas relief in the district court. In this petition, his sole claim was that he was denied effective assistance of counsel on appeal. His arguments on this point were essentially the same as those advanced in his state habeas petitions. The district court referred the case to a magistrate, who reviewed the state record and concluded that Cahoon's "frivolous appeal" brief constituted a total denial of counsel. The magistrate therefore recommended that Lombard be granted an out-of-time appeal due to ineffective assistance of counsel on appeal.

The district court agreed that Cahoon's two-page appellate brief did not amount to competent assistance 5 and that Cahoon "exercised no professional judgment since no strategic grounds existed for failing to object at trial to or raise on appeal" at least some of the points that Lombard identified in his petition. Indeed, the district court expressly acknowledged that Lombard clearly had meritorious claims that Cahoon had failed to raise. Nonetheless, it denied Lombard's petition on the ground that he had not shown he was prejudiced by his counsel's failure to raise the claims on appeal. Quoting Lockhart v. McCotter, 782 F.2d 1275 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873, 93 L.Ed.2d 827 (1987), the district court stated that "[i]t is not sufficient that the petitioner show his counsel fell well below the minimum standard of competency; he must also show that he was prejudiced by counsel's deficient performance." In this case, the district court found that given the overwhelming evidence of guilt against Lombard, he was not in any way prejudiced by Cahoon's failure to...

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