Norris v. Wainwright

• Decision Date: 17 January 1979
• Docket Number: No. 77-2725,77-2725
• Citation: 588 F.2d 130
• Parties: Arthur Lee NORRIS, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 130

588 F.2d 130

Arthur Lee NORRIS, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections State of Florida, Defendant-Appellee.

No. 77-2725.

United States Court of Appeals Fifth Circuit.

Jan. 17, 1979.

Arthur Lee Norris, pro se, Franklyn Louderback and Robert O. Bauer, Jr. (Court-appointed), Garold L. Morlan, St. Petersburg, Fla., for plaintiff-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a habeas corpus case. The petitioner was convicted in state court of murder. He did not appeal. He later filed a petition in Florida state court seeking an out of time appeal because his attorney failed to initiate an appeal pursuant to Norris' instructions. The Florida court directed that a hearing be held to determine the petitioner's claim. At the hearing, the petitioner's trial attorney unequivocally testified that he told the petitioner about his right to an appeal and suggested that the petitioner appeal. The attorney also testified that the petitioner told him not to appeal. The attorney's law clerk testified that Norris had not requested an appeal be taken for him. Moreover, the court reporter present at sentencing testified that his notes reflected that the trial judge informed Norris that he had thirty days to appeal and that if he did not have any money to hire an attorney one would be supplied to him by the state. The petitioner testified that he had asked his attorney to seek an appeal, but his lawyer had told him his appeal was doomed to failure. Norris was not represented by counsel at the state proceeding. Based on this testimony, the state court denied Norris an out of time appeal. Norris v. Wainwright, 331 So.2d 396 (2 Dist.Ct.App.Fla.1976).

The petitioner then filed this action in the United States district court. The district court, after a review of the state court proceedings, denied relief without an evidentiary hearing pursuant to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and 28 U.S.C. § 2254.

I.

Need for a new evidentiary hearing.

Although there is no constitutional right to an appointed counsel at a state habeas corpus action, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Vandenades v. United States, 523 F.2d 1220, 1225 (5 Cir. 1975); Ardister v. Hopper, 500 F.2d 229, 233 (5 Cir. 1974); Stanley v. Wainwright, 406 F.2d 8, 10 (5 Cir. 1969); Queor v. Lee, 382 F.2d 1017, 1018 (5 Cir. 1967), the petitioner argues that the lack of an attorney at the state proceeding automatically vitiates the respect due to a state proceeding under Townsend v. Sain, supra, and 28 U.S.C. § 2254(d). ¹ Therefore Norris contends that the district court erred in not granting a new evidentiary hearing.

In support of his argument, Norris points to two sections of § 2254(d). First, Norris claims under § 2254(d)(5) the United States district court was required to hold a new evidentiary hearing because he was an indigent and the state court in deprivation of his constitutional rights failed to appoint counsel to represent him in the state court proceeding. Second, Norris claims that under § 2254(d)(6), the district court is required to hold another evidentiary hearing because he did not receive a full, fair, and adequate hearing in the state court proceeding.

The petitioner argues that, since § 2254(d)(5) requires a new hearing if the state in deprivation of the constitutional rights of the petitioner failed to appoint an attorney, there must necessarily be a constitutional right to an attorney in the state proceeding. Because we have determined that there is no such general right, this section does not require the district court to afford a new evidentiary hearing in every case that the petitioner did not have an attorney in the state proceeding. This court has upheld the failure to grant a new evidentiary hearing in a number of cases in which the petitioner did not have the aid of an attorney in the state proceeding. See, e. g., Farmer v. Caldwell, 476 F.2d 22, 23 (5 Cir. 1973); Williams v. Smith, 434 F.2d 592, 594 (5 Cir. 1970); Ardister v. Smith, 433 F.2d 931 (5 Cir. 1970).

The petitioner's second argument calls for a different examination. We can easily imagine a case in which the absence of an attorney in the state proceeding would result in a concomitant lack of a full and fair hearing. Under these circumstances it would be incumbent on the federal district court to hold a new evidentiary hearing. However, there is no Per se rule that the lack of counsel at the state habeas corpus hearing requires a De novo evidentiary hearing in federal court. The test under § 2254(d)(6) is whether the lack of counsel in the state proceeding results in the lack of fundamental fairness. See, e. g., Ardister v. Hopper, 500 F.2d 229, 233 (5 Cir. 1974); Wesley v. Alabama, 488 F.2d 30 (5 Cir. 1974); Lane v. Henderson, 480 F.2d 544, 545 (5 Cir. 1973). See generally Gibson v. Jackson, 578 F.2d 1045, 1052 (5 Cir. 1978), Addendum of Judge Rubin, § 1.

In a habeas corpus action in federal court there is no requirement that counsel be appointed unless appointment of counsel is necessary to due process. Hopkins v. Anderson, 507 F.2d 530, 533 (10 Cir. 1975); Kreiling v. Field, 431 F.2d 638, 640 (9 Cir. 1970). It would be a curious result to require a new evidentiary hearing in federal court in each instance in which the petitioner was not represented by counsel at the state court proceeding and simultaneously not require the appointment of counsel in the resulting federal proceeding. No more is required in the state court than is required in the federal court. In both courts, fundamental fairness is the test.

In the state court proceeding Norris claimed that his trial attorney was constitutionally ineffective because the attorney did not take a direct appeal pursuant to Norris' direction. Norris' contentions are similar to the ones advanced in Edge v. Wainwright, 347 F.2d 190 (5 Cir. 1965), Cert. denied, 385 U.S. 953, 87 S.Ct. 335, 17 L.Ed.2d 231 (1966). In Edge the petitioner alleged that he had informed his attorney and the trial judge of his desire to take an appeal, but both had refused to help him prosecute an appeal. We held that if this allegation were found to be true, the petitioner was entitled to habeas corpus relief. 347 F.2d at 192. In the instant case, Norris would be entitled to relief if he could show that his attorney disregarded his instructions to appeal. Flanagan v. Henderson, 496 F.2d 1274, 1277 (5 Cir. 1974). Therefore, the sole issue at the state proceeding was whether the trial attorney disregarded Norris' instructions to take an appeal. See also Benoit v. Wingo, 423 F.2d 880, 883 (6 Cir. 1970); United States v. Maroney, 423 F.2d 865, 871 (3 Cir. 1970).

Given this limited inquiry, we do not think that the state proceeding was fundamentally unfair because Norris lacked an attorney. Norris was present at the state proceeding and fully testified as to his version of the facts. See Harris v. Wainwright, 399 F.2d 142 (5 Cir. 1968) (state hearing in which petitioner was not present not entitled to § 2254 respect). In opposition to his testimony, Norris' trial attorney testified that Norris had specifically told him not to appeal his conviction. The attorney's testimony was bolstered by the attorney's former law clerk who testified that Norris had not, in his presence, asked to appeal his case. Finally, the court reporter testified that his records reflected that Norris had been informed of his appellate rights by the trial judge. Our independent review of the state record convinces us that the state proceeding was fundamentally fair and the findings of fact adopted by the federal district court were supported by the record. Norris' argument that an attorney would have been able, either by incisive cross-examination or by surprise evidence, to expose the witnesses against him as conspiratorial liars is simply too speculative in face of the state court record.

We, therefore, hold that the district court was not required by Townsend v. Sain, supra, or by § 2254(d) to grant a new evidentiary hearing. See Clayton v. Blackburn, 578 F.2d 117 (5 Cir. 1978).

II.

The legal standard.

Although bound by the findings of historical fact, we are not bound by state court determinations of either law or mixed questions of law and fact. Mason v. Balcom, 531 F.2d 717 (5 Cir. 1976); Lee v. Hopper, 499 F.2d 456, 462 (5 Cir. 1974); Davis v. Heyd, 479 F.2d 446, 450 (5 Cir. 1973). Our inquiry now becomes a question of the appropriate legal standard to apply to the facts of the instant case.

As our recent En banc decision in Bonds v. Wainwright, 579 F.2d 317 (5 Cir. 1978) (en banc), demonstrates, relief under an ineffective assistance of counsel theory with regard to appellate rights involves a variation of two themes. First, a petitioner is entitled to relief under Edge v. Wainwright, supra, if he directed his attorney to take an appeal and his attorney disregarded those instructions. Second, a petitioner is entitled to relief ² if he can demonstrate that his court appointed attorney failed to properly inform him of his appellate rights in accordance with Lumpkin v. Smith, 439 F.2d 1084, 1085 (5 Cir. 1971). According to the En banc court, the standard in Edge "differs considerably from that in Lumpkin . . ." 579 F.2d at 320. This is because Lumpkin requires that the defendant be specifically informed of his appellate rights, while Edge admits the possibility that a defendant might fully know of his appellate rights and yet be unable to effectuate them.

Given the two standards, we will review Norris' claim under both theories.

A. Lumpkin v. Smith.

In Lumpkin, we stated:

an indigent accused is...