Marler v. Blackburn

• Decision Date: 04 December 1985
• Docket Number: No. 85-3174,85-3174
• Citation: Marler v. Blackburn, 777 F.2d 1007 (5th Cir. 1985)
• Parties: Raymond MARLER, Jr., Petitioner-Appellant, v. Frank BLACKBURN, Warden Louisiana State Penitentiary, et al., Respondents- Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1007

777 F.2d 1007

Raymond MARLER, Jr., Petitioner-Appellant, v. Frank BLACKBURN, Warden Louisiana State Penitentiary, et al., Respondents- Appellees.

No. 85-3174

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 4, 1985.

Raymond Marler, Jr., pro se.

Patricia E. Black, Asst. Dist. Atty., Nola, La., for respondents-appellees.

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

Before ALVIN B. RUBIN, JOHNSON, and EDITH HOLLAN JONES, Circuit Judges.

OPINION

JOHNSON, Circuit Judge:

Petitioner, Raymond Marler, Jr., appeals from the federal district court's judgment dismissing Marler's application for habeas corpus relief. For the reasons stated below, this Court affirms the judgment of the district court.

I. BACKGROUND

On the afternoon of October 21, 1976, a fire broke out in a fourth floor storage room in the Orleans Parish Prison. Inmates threatened by the fire were evacuated to safety. However, Ronald Brady, a deputy sheriff who was assisting in evacuating prisoners, was overcome by smoke and died.

The petitioner, Raymond Marler, gave a signed confession indicating that he started the fire. According to Marler's confession, he and two other inmates, Edward Vernon and Dirk Thornton, were occupying a fifth floor cell immediately above the fourth floor storage room where the fire began. Due to the age and disrepair of the prison, a small hole was located in the floor of Marler's cell which provided a view of the storage room below. Marler, because he was "bored" and wanted some excitement, decided to light some paper and drop it through the hole in his cell which led to the fourth floor storage room. This burning paper started the fire. Marler's cellmates, Vernon and Thornton, also made statements which supported Marler's statement of how the fire began.

Marler was eventually tried and convicted of second degree murder under Louisiana law. After unsuccessfully appealing his conviction to the Louisiana Supreme Court, Marler filed a state habeas corpus petition which was denied. Marler then filed a federal habeas corpus petition pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Eastern District of Louisiana. The district court dismissed Marler's application for habeas corpus relief without an evidentiary hearing. Marler filed a timely notice of appeal to this Court. On appeal, Marler contends (1) that he received ineffective assistance of counsel at trial, (2) that insufficient evidence existed to support his second degree murder conviction under Louisiana law, and (3) that he was denied due process because his conviction was obtained with perjured testimony.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), establishes a two-pronged test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) the defendant must show that counsel's performance was deficient, and (2) the defendant must show that the deficient performance prejudiced the defense. Id. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 692.

In the instant case, Marler asserts two types of ineffective assistance of counsel. First, Marler asserts that his attorney failed to object to improper questions. Marler testified at trial for the limited purpose of challenging the voluntariness of his confession. During cross-examination, the prosecution questioned Marler regarding several prior convictions. Marler claims that his attorney rendered ineffective assistance by failing to object to this questioning.

This claim is without merit. Louisiana law provides that "[e]vidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness...." La.Rev.Stat.Ann. Sec. 15:495 (West 1981). Marler was a witness, albeit for a limited purpose, and accordingly his credibility was at issue. Thus, evidence of Marler's valid prior convictions was admissible. Because objections to questions regarding Marler's prior convictions would have been futile, counsel was not required to raise such objections in order to render effective assistance. See Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984).

Marler also asserts that his trial attorney failed to secure the testimony of needed witnesses. Specifically, Marler argues that his attorney should have located and called witnesses who could testify that shortly after Marler confessed, he showed symptoms consistent with having been beaten. Such testimony could have buttressed Marler's claim that his testimony was coerced and only given because Marler had been beaten by prison guards.

Nevertheless, this Court concludes that the attorney's failure to secure such testimony did not deprive Marler of effective assistance of counsel. To establish ineffective assistance, a petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 693. In making this objective evaluation, a court's scrutiny should be "highly deferential," with "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 694.

Given the circumstances in the instant case, Marler has failed to overcome this presumption of reasonableness. Marler's claim that his confession was coerced was supported at trial by his own testimony and that of a fellow prisoner, Dirk Thornton. Another fellow prisoner, Edward Vernon, had given testimony at a pre-trial hearing on a motion to suppress indicating that Marler had been beaten prior to confessing. A week before trial, Vernon had told Marler's attorney that Vernon's trial testimony would be similar to his testimony given at the pre-trial hearing. Thus, Marler's attorney went to trial expecting to produce two independent witnesses to the beating. However, at trial Vernon changed his story testifying that he had seen no evidence indicating that Marler was beaten prior to confessing. As a result, Marler's claim that he was beaten before confessing was considerably less well-supported than expected. Relying on hindsight, Marler now maintains that his attorney should have located and called additional witnesses to support the claim that his confession was coerced. Complaints of uncalled witnesses are not favored in federal habeas review. Murray v. Maggio, 736 F.2d at 282. Effectiveness of counsel must be determined as of the time of counsel's conduct, not from hindsight. Strickland, 466 U.S. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 695. Thus, Marler has failed to overcome the strong presumption that his counsel's actions were reasonable.

Even if the failure to secure additional witnesses had been objectively unreasonable, Marler has failed to show that he was prejudiced by his attorney's actions. A petitioner seeking habeas corpus relief on the basis of ineffective assistance of counsel must "affirmatively prove prejudice." Id. at 466 U.S. ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 697. To affirmatively prove prejudice, a petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct....