Passmore v. Estelle, No. 78-1963

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, GODBOLD and INGRAHAM; PER CURIAM; COLEMAN
• Citation: 607 F.2d 662
• Decision Date: 27 November 1979
• Docket Number: No. 78-1963
• Parties: Franklin David PASSMORE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

Page 662

607 F.2d 662 Franklin David PASSMORE, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellee. No. 78-1963. United States Court of Appeals,
Fifth Circuit. Nov. 27, 1979.

Robert Udashen, Dallas, Tex., (Court-appointed), for petitioner-appellant.

Page 663

William L. Sessions, Asst. Atty. Gen., Enforcement Div., Randy E. Drewett, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion April 27, 1979, 5 Cir. 1979, 594 F.2d 115)

Before COLEMAN, GODBOLD and INGRAHAM, Circuit Judges.

PER CURIAM:

The petition for rehearing is granted.

Our original opinion, 594 F.2d 115, is modified by withdrawing the language beginning with the last full paragraph on page 117 and continuing to the end of the opinion and substituting the following therefor.

It is obvious that the representation by petitioner's retained appellate counsel was incompetent. ⁴ Constitutionally ineffective assistance of counsel in state court may be predicated upon either the due process clause of the Fourteenth Amendment or the assistance of counsel clause of the Sixth Amendment. ⁵ See Fitzgerald v. Estelle, 505 F.2d 1334, 1335-37 (5th Cir. 1975) (en banc).

In the first situation, we say that constitutionally ineffective assistance of retained counsel occurs when the whole proceeding is fundamentally unfair. In other words, "the criminal justice system has so grossly malfunctioned that the state's subsequent imprisonment or fine of the defendant is a violation of due process. . . . Fourteenth Amendment state action is present, not because a state official knew or should have known the particulars of the unfairness but because the system has failed." Cantrell v. Alabama, 546 F.2d 652, 653 (5th Cir. 1977) (citation omitted).

In the second situation, state action is present, not because the whole proceeding is "fundamentally unfair" but rather because a state official knew or should have known of the "particulars of the unfairness." Id. The language of Fitzgerald v. Estelle, supra, quoted in Cantrell v. Alabama, supra, concerning the Sixth Amendment denial of assistance of counsel is:

To find state involvement in retained counsel's conduct which is adjudged to be less than reasonably effective, yet not so grossly deficient as to render the proceedings fundamentally unfair, it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained attorney's representation is so apparent that a Reasonably attentive official of the state should have been aware of and could have...