Mitchell v. United States, 14198.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation259 F.2d 787,104 US App. DC 57
Docket NumberNo. 14198.,14198.
PartiesRoosevelt MITCHELL, Appellant, v. UNITED STATES of America, Appellee.
Decision Date12 June 1958

Mr. Harold Leventhal, Washington, D. C. (appointed by this Court) for appellant.

Mr. E. Tillman Stirling, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellee.

Before PRETTYMAN, FAHY and BURGER, Circuit Judges.

Certiorari Denied October 13, 1958. See 79 S.Ct. 81.

PRETTYMAN, Circuit Judge.

Mitchell was indicted, tried and convicted for carnal knowledge of a seven-year-old girl. He was sentenced on October 22, 1953. He was defended by counsel appointed by the District Court. On December 17, 1956, he filed a motion under Section 2255, Title 28, United States Code, to vacate his sentence. The District Court denied the motion without a hearing. It also denied leave to appeal without prepayment of costs. Petition for such an appeal was filed in this court and was allowed. Counsel was appointed. The cause is now before us upon the appeal from the denial of the Section 2255 motion.

The point made by Mitchell here is that he was without the effective assistance of counsel at his trial; that the representation by his court-appointed counsel was inadequate. He specifies that counsel failed to move for acquittal, failed to cross-examine, failed to object to hearsay evidence, and failed to object to a patently erroneous charge to the jury. His present counsel urges that Mitchell sufficiently alleged a denial of a constitutional right. He says the Sixth Amendment guarantees the effective assistance of counsel.

It is well established that the acts of counsel specified by Mitchell do not, in and of themselves, entitle him to relief under Section 2255. A judgment of conviction cannot successfully be attacked collaterally on such grounds, and a motion under Section 2255 is a collateral attack. Therefore, in order to get standing upon such a motion, Mitchell has bundled these alleged failures together and contends that, taken together and in sum total, they constitute ineffective assistance of counsel, violative of the Sixth Amendment and therefore raisable under a collateral motion. Similar motions and petitions have become so numerous, and the present one was so thoroughly and brilliantly presented to us, that we take occasion to examine the problem and to state our views upon it in some detail.

We must first delimit our inquiry. We are not considering a case of alleged physical or mental disability on the part of counsel, or of intoxication, fraud or misrepresentation, dual interest, insufficient time for preparation, or inadequate notice. Such situations have special features. We are here concerned with allegations directed solely to the skill, the relative competence, of trial counsel in matters as to which counsel made decisions, or would have to make decisions, in the course of the trial.

The question before us is not the bare question of the right to counsel. Mitchell had counsel, and this lawyer was present and participating. We note that this lawyer was a well-known, experienced, and able member of our trial bar. Mitchell says he did not have the effective assistance of counsel; the assistance rendered him was not effective. What is meant by "effective assistance" in the application of the requirement of the Sixth Amendment for "the Assistance of Counsel for his defence"?

Of course, as a matter of literal semantics assistance is never effective unless it has the effect sought, that is, unless it is successful. If we were to ascribe that meaning to the term "effective assistance of counsel" in the representation of persons accused of crime, we would produce a rule which said that an alleged criminal is entitled, as a constitutional right, to counsel whose efforts are successful. We need not labor the point. "Effective" assistance of counsel obviously means something other than successful assistance.

A bit of history helps us here. The Constitution itself says nothing about "effective" assistance; it merely says "Assistance". The adjective "effective" came into the law in Powell v. State of Alabama1 and was used by the Supreme Court to describe a procedural requirement. In a particularly heinous crime the trial court appointed the whole bar of the county to defend. But what was everybody's business was nobody's business, and the Court used the word "effective" twice — regarding "an effective appointment" and an assignment at such a time or under such circumstances as to preclude "effective aid" in preparation and trial.

The Supreme Court has also discussed the matter and made rulings in respect to it in Von Moltke v. Gillies,2 Glasser v. United States,3 Johnson v. Zerbst,4 Betts v. Brady,5 Avery v. State of Alabama,6 Ex parte Hawk,7 White v. Ragen,8 and Hawk v. Olson.9 It is clear from these opinions that the term "effective" has been used by the Supreme Court to describe a procedural requirement, as contrasted with a standard of skill. The Court has never held that an accused is entitled to representation by a lawyer meeting a designated aptitude test. It has never used the term to refer to the quality of the service rendered by a lawyer. The Court has clearly established that an indigent accused is entitled to counsel, if he wants one, despite his inability to pay for the service; that appointed counsel must have reasonable opportunity to prepare for his task of defense; and that the lawyer so appointed must have no divergent interest. But the Court has not itself undertaken, nor has it imposed upon the inferior federal courts, the duty of appraising the quality of a defense.

The federal circuit courts of appeals have written many opinions in this field. Some of those cases are cited in the margin.10 Through these opinions run some unanimous views. It has been repeated so many times as to become axiomatic that convicted felons almost unanimously relish the prospect of putting to public judicial test the competence of their erstwhile defenders; that almost any judge or lawyer can point to potential mistakes in reviewing the record of a lost cause; and that even trial counsel, having lost, can almost invariably enumerate what in the hindsight of disaster appear to have been errors.

We find no case in which another federal court has gone as far in granting relief upon allegations of incompetence of counsel as we went in Jones v. Huff.11 There it was alleged that counsel failed to object to a coerced confession, failed to subpoena known witnesses for the defense, failed to call a handwriting expert on a charge of forgery, and failed to offer a sample of handwriting although a juror requested it. We held that if counsel had in fact failed in all those respects the accused had not had a trial in any real sense. We adhere to the rule we there laid down. We think the term "effective assistance" in the constitutional sense cannot be expanded beyond the meaning given it in that case.

We find no case in which a federal court has granted a writ upon a plea that counsel was incompetent in his method or course in presenting the defense. Judge Denman of the Ninth Circuit, acting alone on a petition for a writ on allegations of incompetent and unprofessional counsel, ordered the release of the accused,12 but his brethren of the full bench unanimously reversed.13

We in this court have examined the problem several times14 before and after Jones v. Huff, supra. We have been consistent in our views upon the problem and adhere to them now.

The rule that matters open upon appeal cannot be raised collaterally rests upon a solid foundation; it is not a technicality. Justice must have order; it cannot exist in chaos. In fairness an accused is given an opportunity to present to a reviewing court his allegations of error upon his trial. But the essence of justice is the application of law to duly established facts. Normally, review must come while the matter is fresh, while witnesses, judges and lawyers are available, while memories are accurate. Hence the Rules of Procedure establish time limits for the taking of such a review. Those Rules have been adopted both by the Supreme Court and by the Congress. To permit a convicted person to wait months, or even years as is frequently the case, after the actors have gone and recollections cannot be refreshed, and then to secure review consideration of alleged errors open upon the normal processes of appeal, is to damage, if not destroy, an essential element in the rule of law, the element of accurate impartiality. Of course, and we emphasize it, if an accused has not had a trial, and a fair one in the jurisprudential sense of that word, the courts will supply a remedy. We do so upon occasion. But it is an extraordinary remedy. Courts ought not — must not — forget that our vaunted rule of law is a structure of rules; it is not an amorphous jelly of judicial pleasure. The rule of law is government by rules properly adopted. The precise opposite of that prized system is a practice of disposing of each case without regard to rules and according to the individual and perhaps ephemeral pleasure — or opinion — of a judge. The rule that questions open upon appeal must be raised by appeal is a rule of law, and it is a sound and solid rule.

Much has been written in law journals on the subject of the assistance of counsel. Even a summary examination of the material would unduly prolong this discussion. Able articles appear in the U.C.L.A. Law Review,15 the University of Chicago Law Review,16 the Columbia Law Review,17 and the Texas Law Review,18 among others.

But, it is argued to us, all Mitchell now wants is a hearing on his petition and that surely he should have a hearing. There is the crux of the difficulty. What would the hearing concern?...

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