Passmore v. Estelle, 78-1963

Decision Date27 April 1979
Docket NumberNo. 78-1963,78-1963
Citation594 F.2d 115
PartiesFranklin David PASSMORE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Franklin David Passmore, pro se, Robert Udashen, Dallas, Tex. (Court Appointed), for petitioner-appellant.

John L. Hill, Atty. Gen., William L. Sessions, Asst. Atty. Gen., Enforcement Div., David M. Kendall, Joe B. Dibrell, Jr., Randy E. Drewett, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before COLEMAN, GODBOLD and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Petitioner Franklin David Passmore, a Texas state prisoner, appeals the denial of his application for a federal writ of habeas corpus. Two issues are before the court: (1) whether the state trial court's ruling that defense counsel could not impeach a prosecution witness by evidence of prior incarceration violated petitioner's Sixth Amendment right to confrontation; and (2) whether petitioner's retained counsel rendered ineffective assistance on appeal in submitting a one sentence appellate brief. We affirm the denial of federal habeas relief as to the first issue, but reverse and remand as to the second issue.

Petitioner was convicted in a Texas state district court of the offense of burglary and was sentenced to life imprisonment as an habitual offender. The chief prosecution witness was petitioner's accomplice, Mr. Jimmy Chambers. During cross-examination of Chambers, petitioner's counsel twice asked the witness if he had been in jail since his arrest for the burglary. On both occasions, the court sustained the government's objection to the question.

On appeal, petitioner retained as counsel Mr. Harris Lofthus, who had not represented him at trial. 1 Mr. Lofthus filed a one sentence, thirteen word, brief on petitioner's behalf, which merely recited a prayer for relief: "Appellant prays that this case be reversed and remanded for a new trial." Although Mr. Lofthus had filed no request for extension of time in which to file a brief as provided by Rule 15 of the Texas Court of Criminal Appeals, Tex.Code Crim.Proc. art. 44.33 (1979), he submitted a "First Amended Brief" after the deadline for filing had passed. The Texas Court of Criminal Appeals affirmed the conviction in an unreported one paragraph per curiam opinion. Of the one sentence brief, the court observed: "Obviously, this presents nothing for review." Of the "First Amended Brief," the court stated that it would not be considered because of its untimely filing. Nonetheless, in the interest of justice, the court examined the record.

Proceeding in forma pauperis, petitioner exhausted state remedies before filing an application for federal habeas corpus relief under 28 U.S.C. § 2254 (1976). On February 22, 1978, the district court denied the application for writ of habeas corpus in accordance with the Report and Recommendation of the United States Magistrate.

Petitioner argues that the state trial court's ruling that defense counsel could not impeach a prosecution witness by evidence of his incarceration violated the confrontation clause of the Sixth Amendment. We find no merit in petitioner's argument. The court's ruling was dictated by Article 38.29 of the Texas Code of Criminal Procedure which forbids impeachment by past criminal misconduct unless a final conviction has been entered. 2 Application of the statute by the trial court did not unduly restrict cross-examination in violation of the Sixth Amendment. Cf. United States v. Mayer,556 F.2d 245, 248-49 (5th Cir. 1977); United States v. Crumley, 565 F.2d 945, 949-50 (5th Cir. 1978).

Petitioner's second argument is that his retained counsel rendered ineffective assistance on appeal in submitting a one sentence brief. 3 In this circuit, a criminal defendant is entitled to "counsel reasonably likely to render and rendering reasonably effective assistance." United States v. Guerra, 588 F.2d 519 (5th Cir. 1979), quoting MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), modified 289 F.2d 928, Cert. denied, 368 U.S. 877, 82 S.Ct. 821, 7 L.Ed.2d 78 (1961). Review of an ineffective assistance claim "requires an inquiry into the actual performance of counsel . . . and a determination whether reasonably effective assistance of counsel was rendered based on the totality of the circumstances." Carbo v. United States, 581 F.2d 91, 92 (5th Cir. 1978).

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. The Fourteenth Amendment is violated when retained counsel's representation is " 'so grossly deficient as to render the proceedings fundamentally unfair'." Kallie v. Estelle, 515 F.2d 588, 591 (5th Cir. 1975); Fitzgerald v. Estelle, 505 F.2d 1334, 1337 (5th Cir. 1975). The Sixth Amendment is violated when retained counsel's incompetent representation is "so apparent that a reasonably attentive official of the state should have been aware of and could have corrected it." Id. at 1337.

The conduct of petitioner's retained appellate counsel was so maladroit as to run afoul of the Fourteenth Amendment. "The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate on behalf of his client, as opposed to that of Amicus curiae. . . . His role as advocate requires that he support his client's appeal to the best of his ability." Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

The submission of a one sentence brief by Mr. Lofthus was tantamount to abandonment of representation. It is well settled that appellate counsel "may not abandon representation on his own Ipse dixit." Wright v. Estelle, 572 F.2d 1071, 1083 (5th Cir. 1978). If counsel wishes to withdraw after notice of appeal has been filed, "he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Barker v. Wainwright, 459 F.2d 8, 10 (5th Cir. 1972). Like the no-merit letter submitted by appellate counsel in Anders, 4 the one sentence brief submitted by Mr. Lofthus failed to meet the minimum constitutional requirement of effective assistance of counsel on appeal.

T...

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    • United States
    • U.S. Supreme Court
    • January 21, 1985
    ...v. Cleaver, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861 (1981); Miller v. McCarthy, 607 F.2d 854, 857-858 (CA9 1979); Passmore v. Estelle, 594 F.2d 115 (CA5 1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); Cantrell v. Alabama, 546 F.2d 652, 653 (CA5), cert. denied......
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    ...102 S.Ct. 1759, 72 L.Ed.2d 168 (1982); Cleaver v. Bordenkircher, 634 F.2d 1010 (6th Cir. 1980), cert. denied sub nom.; Passmore v. Estelle, 594 F.2d 115 (5th Cir. 1979), cert. denied 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); Cantrell v. Alabama, 546 F.2d 652 (5th Cir.), cert. den......
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