Passmore v. Estelle, No. 78-1963

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore COLEMAN, GODBOLD and INGRAHAM; PER CURIAM; COLEMAN
Citation607 F.2d 662
Decision Date27 November 1979
Docket NumberNo. 78-1963
PartiesFranklin 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...

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18 practice notes
  • Watson v. U.S., No. 13796.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 10, 1987
    ...to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982) (counsel's failure to file brief with appeal); Passmore v. Estelle, 607 F.2d 662 (5th Cir. 1979) (counsel's submission of one-sentence appellate brief on behalf of one whose conviction had resulted in a life sentence); Meyer ......
  • Harris v. Kuhlman, No. CV-84-2657 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 5, 1985
    ...participation. Id. at 342-46; 100 S.Ct. at 1715-16. State involvement is even greater when counsel is appointed. See Passmore v. Estelle, 607 F.2d 662, 663 (5th Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); Cf. Cousart v. Hammock, 745 F.2d 776, 777 n. 1 (2d W......
  • Watson v. United States, No. 83-996.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 8, 1986
    ...materially prejudiced thereby"; appellant was not prejudiced by omission since issue did not have "arguable merit"); Passmore v. Estelle, 607 F.2d 662, 663-64 (5th Cir. 1979) (retained appellate counsel's filing of one sentence brief rendered appellate proceeding "fundamentally unfair") (mo......
  • Garcia v. State, No. 71148
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 13, 1994
    ...op., 887 S.W.2d at 881-882. Appellant, through his attorney, has committed "a flagrant violation" of Rule 74. In Passmore v. Estelle, 607 F.2d 662 (5th Cir.1979), the Fifth Circuit considered this issue. On direct appeal, Passmore's appellate counsel filed a brief consisting of one sentence......
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18 cases
  • Watson v. U.S., No. 13796.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 10, 1987
    ...to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982) (counsel's failure to file brief with appeal); Passmore v. Estelle, 607 F.2d 662 (5th Cir. 1979) (counsel's submission of one-sentence appellate brief on behalf of one whose conviction had resulted in a life sentence); Meyer ......
  • Harris v. Kuhlman, No. CV-84-2657 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 5, 1985
    ...participation. Id. at 342-46; 100 S.Ct. at 1715-16. State involvement is even greater when counsel is appointed. See Passmore v. Estelle, 607 F.2d 662, 663 (5th Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); Cf. Cousart v. Hammock, 745 F.2d 776, 777 n. 1 (2d W......
  • Watson v. United States, No. 83-996.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 8, 1986
    ...materially prejudiced thereby"; appellant was not prejudiced by omission since issue did not have "arguable merit"); Passmore v. Estelle, 607 F.2d 662, 663-64 (5th Cir. 1979) (retained appellate counsel's filing of one sentence brief rendered appellate proceeding "fundamentally unfair") (mo......
  • Garcia v. State, No. 71148
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 13, 1994
    ...op., 887 S.W.2d at 881-882. Appellant, through his attorney, has committed "a flagrant violation" of Rule 74. In Passmore v. Estelle, 607 F.2d 662 (5th Cir.1979), the Fifth Circuit considered this issue. On direct appeal, Passmore's appellate counsel filed a brief consisting of one sentence......
  • Request a trial to view additional results

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