Luckey v. Harris, 88-8047

• Decision Date: 29 December 1989
• Docket Number: No. 88-8047,88-8047
• Citation: 896 F.2d 479
• Parties: Horace LUCKEY, III, et al., Plaintiffs-Appellants, v. Joe Frank HARRIS, Governor, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 479

896 F.2d 479

Horace LUCKEY, III, et al., Plaintiffs-Appellants, v. Joe Frank HARRIS, Governor, et al., Defendants-Appellees.

No. 88-8047.

United States Court of Appeals, Eleventh Circuit.

Dec. 29, 1989.

Neil Bradley and Laughlin McDonald, American Civil Liberties Union Foundation, Inc., David A. Webster, Robert B. Remar, Atlanta, Ga., for plaintiffs-appellants.

Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia; Harold L. Murphy, Judge.

ON PETITIONS FOR REHEARING AND SUGGESTIONS OF REHEARING IN BANC

(Opinion November 23, 1988, 11th Cir., 1988, 860 F.2d 1012).

Before VANCE ^* and HATCHETT, Circuit Judges, and SCOTT ^**, District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing In Banc are also DENIED.

EDMONDSON, Circuit Judge, dissenting in which TJOFLAT, Chief Judge, FAY and COX, Circuit Judges, join:

Concerns of equity, comity and federalism make this an exceptionally important case. Today's court unfortunately has declined to give the case that extra consideration which comes with in banc rehearing. On our court, dissents are rarely written when we decline in banc rehearing; but the principles involved here require me to protest and to explain briefly the way I see the case.

The district judge dismissed this case, believing that he lacked the authority to grant the relief sought by plaintiffs. I believe the district court's judgment was correct. The panel opinion misconstrues the sixth amendment and disregards considerations of comity and federalism that underlie Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, including our own decisions. The result of these errors is to place Georgia's state courts potentially under the direct supervision of a single federal district judge.

The panel opinion holds that the following allegations are sufficient to state a claim for injunctive relief (presumably enforceable by contempt) against the Governor of Georgia and all Georgia judges who preside over criminal trials of indigent defendants in the Georgia courts:

[Plaintiffs] have alleged that systematic delays in the appointment of counsel deny them their sixth amendment right to the representation of counsel at critical stages in the criminal process, hamper the ability of their counsel to defend them, and effectively deny them their eighth and fourteenth amendment right to bail, that their attorneys are denied investigative and expert resources necessary to defend them effectively, that their attorneys are pressured by courts to hurry their case to trial or to enter a guilty plea, and that they are denied equal protection of the laws.

Luckey v. Harris, 860 F.2d 1012, 1018 (11th Cir.1988). Plaintiffs' complaint asks the federal court to order defendants to pay indigent-defense lawyers more, to provide counsel earlier in the criminal process, and to provide more defense services and expert resources. I think that plaintiffs' sixth amendment allegations fail to state a claim upon which relief can be granted. ¹

Two sentences form the linchpin of the panel's opinion: "The sixth amendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the 'ineffectiveness' standard may nonetheless violate a defendant's rights under the sixth amendment." Id. at 1017. No citation of authority follows these statements. More important, this view of the sixth amendment is inconsistent with the language and rationale of both Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984).

The sixth amendment is inextricably bound up with the fairness of a defendant's trial: "[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." Cronic, 466 U.S. at 658, 104 S.Ct. at 2046 (emphasis added). "[T]he Sixth Amendment['s purpose] is not to improve the quality of legal representation...." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. at 691-92, 104 S.Ct. at 2067 (emphasis added). Thus, the sixth amendment right to counsel is not an abstract right to a particular level of representation; it is the right to the representation necessary for a fair trial. There can be no sixth amendment violation in the absence of prejudice at a particular trial. ² Put differently, if there is no prejudice, the alleged sixth amendment violation is not merely harmless; there is no violation at all.

Because prejudice is an essential element of any sixth amendment violation, sixth amendment claims cannot be adjudicated apart from the circumstances of a particular case. Put differently, no claim for relief can be stated in general terms as was attempted here. The sixth amendment does not lend itself to a rigid set of rules. For example, "the Constitution nowhere specifies any period which must intervene between the required appointment of counsel and trial...." Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Although plaintiffs allege that delays in the appointment of counsel deny them counsel at "critical stages" in the criminal process, this conclusory allegation fails to identify the "critical stage" at which Georgia systematically denies counsel to indigent defendants. This allegation is inadequate and does not put Georgia on notice of the alleged unconstitutional conduct. See Frankos v. LaVallee, 535 F.2d 1346 (2d Cir.1976); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987) ("allegations which are nothing more than broad, simple conclusory statements are insufficient to state a claim under Sec. 1983"). But even if I assume that the complaint alleges a sixth amendment violation, I think the panel opinion is wrong.

The most troublesome aspect of this case is its disregard for federalism and comity between federal and state courts. The lower federal courts are not and ought not to be the general supervisors of state courts; yet this is what the complaint seeks. Lower federal courts--that is, district and circuit courts--can enforce the sixth amendment against the states; but the appropriate enforcement mechanism is post-conviction habeas corpus relief, operating on a case-by-case basis and grounded upon a finding of prejudice.

The state defendants contend that "considerations of federalism alone" would be enough to justify the district court's judgment and, in the district court, moved to dismiss per Fed.R.Civ.P. 12(b)(1), (2), and (6). But even if abstention has not been asserted expressly, the abstention doctrine is much more than a "pleader's option." See Zwickler v. Koota, 389 U.S. 241, 256, 88 S.Ct. 391, 400, 19 L.Ed.2d 444 (1967) (Harlan, J., concurring). The Supreme Court, on its own motion, has requested parties to brief the Younger abstention issue and refused to abstain only after both parties urged a decision on the constitutional merits. See Sosna v. Iowa, 419 U.S. 393, 396 n. 3, 95 S.Ct. 553, 556 n. 3, 42 L.Ed.2d 532 (1975). As stated in Mitchell Family Planning Inc. v. City of Royal Oak, 335 F.Supp. 738, 740 (E.D.Mich.1972), "[w]hile defendants have not argued [Younger ] abstention, it is a matter which the court must consider when it is requested to act in a manner which may affect the sensitive area of federal-state relations."

Dismissal of the action pursuant to Fed.R.Civ.P. 12(b) is not only supported by precedent, but is mandated by case law of the Supreme Court and of this circuit. For example, in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), the Supreme Court upheld the district court's dismissal of the action because plaintiffs failed to present an existing case or controversy and because they stated no adequate basis for equitable relief. Younger 's principles of federalism and comity prevented the Court from granting the requested relief because the injunction would have been a "major continuing intrusion" of federal power into the daily operations of state criminal procedures. The action was thus properly dismissed because it failed to state a claim for which relief could be granted. Defendants have a right to avoid not only the judgment, but the process of defending themselves in federal courts; that is what Rule 12(b) is about. When the potential interference with state courts is unacceptable, a 12(b) dismissal is the appropriate reaction. What is said in O'Shea is on point here and summarizes my chief criticism of the panel opinion:

What [plaintiff-respondents] seek is an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The order the Court of Appeals thought should be available if respondents proved their allegations would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption of state proceedings to adjudicate assertions of noncompliance by petitioners. This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would...