Murray v. Maggio

• Decision Date: 16 July 1984
• Docket Number: No. 83-3724,83-3724
• Citation: 736 F.2d 279
• Parties: Anthony MURRAY, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 279

736 F.2d 279

Anthony MURRAY, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary Respondent-Appellee.

No. 83-3724

Summary Calendar.

United States Court of Appeals Fifth Circuit.

July 16, 1984.

Leopold Weill, III, New Orleans, La., for petitioner-appellant.

Beryl M. McSmith, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

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

Before REAVLEY, RANDALL and JOHNSON, Circuit Judges.

PER CURIAM:

Anthony Murray has appealed the federal district court's denial of his petition for habeas corpus relief. 28 U.S.C. Sec. 2254 (1982). He contends that he is entitled to habeas relief on the ground that he was deprived of effective assistance of counsel at trial. Because we perceive no error in the magistrate's carefully reasoned report and recommendations, which were adopted by the district court, we affirm.

Murray was convicted in a jury trial of armed robbery, and sentenced to twenty-five years at hard labor in the custody of the Louisiana Department of Corrections. His conviction and sentence were affirmed by the Louisiana Supreme Court.

Murray subsequently sought post-conviction relief from the state trial court, alleging that his arrest had been illegal, that the identification procedures employed at the time of his arrest and at trial were impermissibly suggestive, and that the representation provided him by his retained counsel was ineffective. The trial court held evidentiary hearings, at which Murray and eight witnesses on his behalf were allowed to testify. The trial court denied Murray's petition for post-conviction relief, assigning lengthy reasons for its judgment. Murray then sought writs to the Louisiana Supreme Court, which were denied.

Having exhausted his state court remedies, Murray then sought habeas corpus relief from the federal district court under 28 U.S.C. Sec. 2254, alleging the same three deficiencies that he had urged in state court. The district court denied Murray's petition. Murray appeals the district court's judgment to this court, although he has chosen to brief on appeal only those issues relating to ineffective assistance of counsel. His claims regarding his arrest and his identification, therefore, are deemed abandoned, Davis v. Maggio, 706 F.2d 568, 571 (5th Cir.1983), and we need not address them on appeal.

Shortly after Murray's arrest on the armed robbery charge, his family retained attorney Arthur Harris to represent him. Harris represented Murray at a preliminary hearing held on October 14, 1975. Shortly thereafter, Murray's mother, Mary Rhodes, realized that she could not afford Harris' fee, and she then hired attorney George Fust to represent Murray. Murray asserts that certain acts and omissions of Fust deprived him of effective assistance of counsel.

The following is Murray's version of the trial preparation and defense conducted by Fust. Fust visited Murray only once before trial for approximately ten to twenty minutes. During this meeting, Murray related his version of the events of the evening of his arrest and gave Fust the names of his possible witnesses. Fust did not obtain a copy of the transcript of the preliminary hearing and did not talk to Harris concerning the case. Although he knew of the circumstances of Murray's arrest and identification and that the identification was the only evidence against Murray, Fust did not file a motion to suppress the identification. Fust did interview Murray's alibi witnesses, but only because Ms. Rhodes, on her own initiative, brought them to his office. Fust talked to no other witnesses. Fust never discussed the nature of the defense he planned to present with either Murray or his family. At trial, Fust waived opening argument, failed to object to leading questions by the prosecution, and failed to cross-examine the prosecution witnesses about circumstances surrounding the identification of Murray. Fust called three witnesses, including Murray, but never discussed with those witnesses prior to trial the nature of their testimonies. As a result of this failure to prepare the other two witnesses, Murray claims, they both mentioned another arrest which had occurred the same evening as the armed robbery arrest. Fust made no attempt to clarify the nature of the arrest (which was for simple trespass and resisting arrest) by redirect or rebuttal testimony. Finally, Fust failed to call Irene Lewis, Murray's girlfriend, who was present in court the day of the trial and who would have testified that she was on the phone with Murray at the time the robbery was to have occurred. On these facts, Murray argues that Fust's representation was defective.

The Supreme Court has recently, in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for the first time addressed the proper standards for judging a criminal defendant's contention that his counsel's assistance was so defective as to require reversal of the defendant's conviction. Under the Strickland standard, a petitioner must make a two-stage showing: first, that the counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment; and second, that the deficient performance was so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable.

Washington directs that in examining the first stage--whether counsel's performance was deficient--"[j]udicial scrutiny of counsel's performance must be highly deferential." --- U.S. at ----, 104 S.Ct. at 2065. Our inquiry must be whether counsel's assistance was reasonable considering all the circumstances. However, because it is all too easy to second-guess an unsuccessful counsel's defense with the benefit of hindsight, in making that inquiry "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (citation omitted).

In examining the second stage--whether the deficient performance was prejudicial--we must inquire as to whether the defendant has shown that there is a reasonable probability that, but for counsel's specified errors, the result of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." --- U.S. at ----, 104 S.Ct. at 2068. Thus, when a defendant has challenged his conviction, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id.

A defendant must make both of these showings in order to prevail in his claim of ineffective assistance of counsel. However, in addressing a defendant's claim, we need not approach the inquiry in any particular order or even address both stages of the inquiry if an insufficient showing is made as to one. A claim may be disposed of for either...