Martin v. Blackburn, Civ. A. No. 81-566.

• Decision Date: 12 August 1981
• Docket Number: Civ. A. No. 81-566.
• Citation: 521 F. Supp. 685
• Parties: David Dene MARTIN v. Frank C. BLACKBURN, Warden, Attorney General of State of Louisiana.
• Court: U.S. District Court — Eastern District of Louisiana

521 F. Supp. 685

David Dene MARTIN v. Frank C. BLACKBURN, Warden, Attorney General of State of Louisiana.

Civ. A. No. 81-566.

United States District Court, E. D. Louisiana.

August 12, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard E. Shapiro, New Orleans, La., for plaintiff.

John Erny, Jr., Asst. Dist. Atty., 17th Judicial Dist., Thibodaux, La., for defendants.

ORDER

JACK M. GORDON, District Judge.

This Court has carefully and personally considered petitioner's complaint, the entire state court record, the record of the hearings held before the United States Magistrate on the issues of ineffective assistance of counsel pursuant to the Court's order of April 1, 1981, the applicable law, the Report and Recommendation of the United States Magistrate dated July 17, 1981, and the objections to Report and Recommendation of Magistrate filed by petitioner on August 4, 1981. To the extent that the Report and Recommendation of the Magistrate represents a review of an application for post-trial relief pursuant to Rule 20.3c of the General Rules of the United States District Court for the Eastern District of Louisiana, this Court hereby approves the said Report and Recommendation and adopts it as its opinion herein. To the extent that the said Magistrate's Report and Recommendation represents the Magistrate's finding that petitioner received effective assistance of counsel in both the "guilt-innocence" stage of his trial and the "sentencing" phase of his trial, this Court, upon its examination of the record as hereinabove set forth hereby makes a de novo determination that the petitioner received effective assistance of counsel within appropriate constitutional minima.

A review of the different segments of the Magistrate's Report is appropriate in light of assertions made by petitioner in his objections. First, it is significant to note that this Court's order of April 1, 1981, affording petitioner an evidentiary hearing dealt solely with the issues of ineffective assistance of counsel, as set forth in a Magistrate's Report and Recommendation of the same date. In the Magistrate's April 1, 1981 Report and Recommendation the Magistrate stated to the Court: "While petitioner's other assertions are capable of disposition on the basis of the state court record, that record is inadequate to determine the substance of petitioner's ineffective assistance of counsel assertions...." Thus, the only portion of the Magistrate's final Report to the Court dated July 17, 1981, which is subject to the provisions of 28 U.S.C. Section 636(b)(1)(C), is the Magistrate's Findings and Recommendations pertaining to petitioner's contentions regarding ineffective assistance of counsel in the two phases of his trial. All other portions of the Magistrate's Report and Recommendation are governed by Rule 10 of the "Rules Governing Section 2254 Cases in the United States District Court," effective February 1, 1977, as implemented by Rule 20.3c of the General Rules of the United States District Court for the Eastern District of Louisiana. In other words, they are designed to facilitate this Court's decision as to whether there need be a hearing on any other contentions.

Thus, although petitioner is not entitled to file objections under 28 U.S.C. 636(b)(1) to those portions of the Magistrate's Report and Recommendation other than those findings and recommendations dealing with the issues of ineffective assistance of counsel, this Court nevertheless has considered all of the objections filed by petitioner on August 4, 1981, and finds them to be without merit.

With regard to the issues of ineffective assistance of counsel for which the Magistrate conducted hearings, it is well to note that the Magistrate initially assigned the date of April 13, 1981, as the date to commence the evidentiary hearing. (See Magistrate's Minute Entry of April 3, 1981.) Thereafter at a preliminary conference on April 13, 1981, the Magistrate, at the request of counsel for the petitioner, continued the beginning of the evidentiary hearing to June 10, 1981, a period of approximately 60 days. Thereafter Mr. Shapiro, counsel for petitioner, again sought to continue the hearing, and at a June 3, 1981 conference the Magistrate agreed to continue the hearing in part. On June 9, 1981, counsel for petitioner filed list of witnesses, which included Mr. Ray Bass of Houston, Texas, who had been petitioner's privately retained lead counsel in both phases of the state court trial. The Magistrate patiently listened to evidence on June 10 and 11, 1981, June 18 and 19, 1981, and June 26, 1981. On June 19, 1981, the Magistrate, over Mr. Shapiro's objection, ordered that Mr. Bass' testimony be taken over long distance telephone. It was noteworthy that at that time counsel for petitioner had had over three months to secure the testimony of Mr. Bass by deposition, but had only spoken to Mr. Bass on one occasion by telephone. (See page 25 of Transcript of Proceedings before Magistrate on June 19, 1981.) Moreover, at the conclusion of testimony on June 19, the hearing was recessed for another week until June 26, during which time counsel for petitioner could have obtained the deposition if the telephone examination were considered insufficient. The record reflects that counsel for petitioner took no action other than to again request of the Magistrate further delay of at least two weeks for the taking of Mr. Bass' formal deposition. (See pages 103, 104, Transcript of Proceeding Before Magistrate on June 26, 1981.)

This Court fully agrees with the Magistrate's decision in refusing further delay which would have been unconscionable in light of the extent to which the matter had already been drawn out by the aforesaid narrative of events and by extremely repetitive testimony of little probative value.

Next, petitioner objects to the Magistrate's failure to designate specific findings of fact as such. The Court finds no merit in this further attempt to prolong this proceeding by suggesting that the Court re-refer the matter to the Magistrate for further findings labeled as such. One must bear in mind that the sole purpose of the hearings ordered by this Court was to determine adequacy of counsel within constitutional minima. The Magistrate clearly made findings in this regard, and this Court after review of the transcript of the proceedings and the entire state court record has absolutely no difficulty in making a de novo finding that petitioner received adequate assistance in all phases of his trial. It is true that petitioner lost his case and was found guilty. He was not successful in persuading the jury of the existence of mitigating factors justifying a sentence of life imprisonment rather than death. This does not mean, however, that he did not receive effective assistance of his lawyers as he desired that assistance at the time of the various phases of his trial. Great caution must be taken not to judge the performance of his lawyers through hindsight. Every lawyer makes mistakes; but more than that, every lawyer who lost a case has mused, often painfully, "What if ...?"

It may be as suggested by petitioner's present counsel that petitioner might not now face the supreme penalty for his heinous acts if different strategy or tactics had been adopted at the time of the trial. But when this Court examines the entire proceeding of the trial along with the challenged behavior and decisions of counsel in the context of the law and other controlling circumstances as they existed at the time, I am left with the strong conviction that counsel rendered effective assistance, particularly in light of the petitioner's insistence concerning the manner in which his defense be conducted.

This Court has been presented with a laundry list of alleged defects cleverly designed, in the opinion of this Court, to frustrate society's sacred rules by extending into perpetuity lawyers' arguments concerning the protections to be afforded one facing the supreme penalty. It is no wonder that many citizens, when considering matters of this nature with a common sense unbesmirched by the sophistry of the law, have concluded that our legal system is incapable of protecting society from wanton acts of violence and uncivilized behavior such as is reflected in the record of petitioner's conduct on August 14, 1977. Petitioner has had his day in court, has had ample opportunity to introduce evidence relating to the issues of ineffective assistance of counsel, has had multiple careful consideration of his statutory and constitutional arguments, and it is time that society's mandate be carried out.

Accordingly, IT IS ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is DENIED and the stay of execution issued by this Court on February 11, 1981, is DISSOLVED and the Clerk is directed to ENTER FINAL JUDGMENT.

EPILOGUE

The murders out of which this case has arisen occurred on August 14, 1977. The petitioner, Martin, was quickly apprehended and was promptly tried, convicted and sentenced within a year. His direct appeal was denied by the Supreme Court of Louisiana in 1979, and the Supreme Court of the United States denied certiorari finally on January 19, 1981. Thereafter the petitioner filed writs of habeas corpus and accompanying applications for stay of execution in the state courts, which applications were denied by the state district court on February 9, 1981, and the Louisiana Supreme Court on February 10, 1981. Petitioner then filed the instant petition in this Court, pursuant to 22 U.S.C. ? 2254 on February 11, 1981, two days prior to the scheduled date of his execution, February 13, 1981. This Court, after a hearing at which petitioner and the State were represented by counsel, concluded that it would be physically impossible for the Court to discharge its statutorily mandated duty under 28 U.S.C. ? 2254 prior to February 13, 1981, and, accordingly, I was...