Perron v. Perrin, 83-1795

• Citation: 742 F.2d 669
• Decision Date: 27 August 1984
• Docket Number: No. 83-1795,83-1795
• Parties: Donald B. PERRON, Petitioner, Appellant, v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 669

742 F.2d 669

Donald B. PERRON, Petitioner, Appellant, v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison,

Respondent, Appellee.

No. 83-1795.

United States Court of Appeals, First Circuit.

Argued March 5, 1984.

Decided Aug. 27, 1984.

Jon Meyer, Manchester, N.H., by appointment of the Court, with whom Backus, Shea & Meyer, Manchester, N.H., was on brief, for petitioner, appellant.

Andrew L. Isaac, Asst. Atty. Gen., Concord, N.H., with whom Gregory H. Smith, Atty. Gen., and Edna M. Conway, Atty., Crim. Justice Div., Concord, N.H., were on brief, for respondent, appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and GIERBOLINI, ^* District Judge.

GIERBOLINI, District Judge.

Petitioner appeals from an order of the U.S. District Court for the District of New Hampshire dismissing his petition for a writ of habeas corpus for failure to show that he had been denied effective assistance of counsel and that he had been deprived of his right to a speedy trial. We affirm.

At approximately 8:30 p.m. on November 6, 1979, Robert D. O'Neal, a Dartmouth undergraduate, was beaten and robbed near the center of the Dartmouth College campus. Subsequently, petitioner Donald Perron was arrested and indicted on charges of second degree assault and robbery. After a jury trial, petitioner was sentenced to six to twelve years on the robbery charge and to one-and-a-half to three years on the second degree assault charge. His convictions were upheld by the New Hampshire Supreme Court in State v. Perron, 122 N.H. 941, 454 A.2d 422 (1982), where he raised the issues of ineffective assistance of counsel and denial of speedy trial.

In March 1983, petitioner filed a writ of habeas corpus before the United States District Court for the District of New Hampshire and requested to proceed in forma pauperis. In approving the request to proceed in forma pauperis, the district court ruled that petitioner had exhausted his state remedies as required by 28 U.S.C. Sec. 2254(b) for these same issues were considered and decided by the New Hampshire Supreme Court. On April 30, 1983 the district court granted the state's motion to dismiss the petition and summarily denied the motion for reconsideration. Thereafter, it granted petitioner's request for certification of probable cause and the present appeal ensued.

At the outset, petitioner argues that the district court erred in determining, without a hearing, that he had been denied effective assistance of counsel.

This court said in Lemire v. McCarthy, 570 F.2d 17 (1st Cir.1979), that a district court must take additional evidence in a petition for habeas corpus if "the relevant facts were not reliably determined by the state court or are incapable of reconstruction from the record." 570 F.2d at 19. See also Guice v. Fortenberry, 661 F.2d 496, 498 (5th Cir.1981), reh'g granted, 642 F.2d 98, appeal after remand, 722 F.2d 276 (1984), reh'g denied, 726 F.2d 752; Johnson v. Estelle, 704 F.2d 232, 239 (5th Cir.1983), reh'g denied, 711 F.2d 1054,cert. denied, --- U.S. ----, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984); Ross v. Hopper, 716 F.2d 1528, 1536 (11th Cir.1983). In the present case the material facts underlying petitioner's ineffective assistance claim are capable of reconstruction from the state trial record, and we find that petitioner was provided a full and fair opportunity to ventilate before the state court all the issues presented before the United States District Court. ¹ In evaluating trial counsel's performance the district court properly relied on the trial transcript and the conclusions of the New Hampshire Supreme Court in State v. Perron. An evidentiary hearing was unnecessary. Moreover, it appears that none was ever requested.

We shall now proceed to review petitioner's argument that he was denied effective assistance of counsel bearing in mind our duty "to accord a presumption of correctness to state-court findings of fact." Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982).

Over the years, the Supreme Court has repeatedly recognized the sixth amendment right to counsel, and its necessity to protect the fundamental right to a fair trial, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1965), but had never promulgated a test to guide circuit and district courts in their determinations as to whether the right has been done violence. Until now all federal courts of appeals agreed that the criterion to be applied in ineffectiveness claims was reasonably competent assistance. See United States v. Bosch, 584 F.2d 1113 (1st Cir.1978); Trapnell v. United States, 725 F.2d 149 (2d Cir.1983); Moore v. United States, 432 F.2d 730 (3rd Cir.1970) (en banc); Marzullo v. Maryland, 561 F.2d 540 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978); Caraway v. Beto, 421 F.2d 636 (5th Cir.1970) (per curiam); Beasley v. United States, 491 F.2d 687 (6th Cir.1974); United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975); United States v. Easter, 539 F.2d 663 (8th Cir.1976); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979); Dyer v. Crisp, 613 F.2d 275 (10th Cir.) (en banc), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980); Douglas v. Wainwright, 714 F.2d 1532 (11th Cir.1983); United States v. De Coster, 487 F.2d 1197, 1202 (D.C.Cir.1973).

In Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court clearly set forth the standard for determining effective assistance of counsel. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at ----, 104 S.Ct. at 2064; United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Court reasoned that the well established right to counsel played a crucial role in the adversarial system embodied in the sixth amendment. Indeed, without access to counsel's skill and knowledge defendants would effectively be denied "the 'ample opportunity to meet the case of the prosecution' to which they are entitled." Strickland, --- U.S. at ----, 104 S.Ct. at 2063, citing Adams v. United States ex rel McCann, 317 U.S. 269, 275, 276, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942).

To determine whether assistance of counsel was in actuality so defective as to warrant reversal, the Court formulated a two-pronged test. The criminal defendant must prove first, that counsel's performance was deficient, and second, that the deficient performance prejudiced the defense thus depriving him of a fair trial. Strickland, --- U.S. at ----, 104 S.Ct. at 2064.

The proper standard for judging attorney's performance is that of reasonably effective assistance, taking into consideration all the circumstances. A convicted defendant must show that counsel made errors so serious that counsel's representation fell below an objective standard of reasonableness. In cases where it does, criminal defendants would not have received a fair trial.

The Court emphasized that judicial scrutiny of counsel's performance must be highly deferential. It confirmed the rule in this circuit that reviewing courts shall not use the benefit of hindsight to second-guess tactical decisions made by an attorney unless they are unreasonable. Id. at ----, 104 S.Ct. at 2065; see United States v. Pasarell, 727 F.2d 13 (1st Cir.1984); United States v. Ortiz Oliveras, 717 F.2d 1 (1st Cir.1983). Instead, after the defendant has identified the acts or omissions of counsel alleged to be ineffective, the reviewing court must reconstruct the circumstances of counsel's conduct and evaluate it from counsel's perspective at the time. Because of the difficulties inherent in making such evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, --- U.S. at ----, 104 S.Ct. at 2065.

With regard to the second prong, "[i]t is not enough for the defendant to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding." Strickland, --- U.S. at ----, 104 S.Ct. at 2067. ² Defendant bears the heavier burden of affirmatively showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068. In making the above determination a court hearing an ineffective assistance claim must consider the totality of the evidence before it.

In short, the appropriate inquiry in ineffective assistance claims focuses on the adversarial process. If counsel is a reasonably effective advocate, and has not substantially prejudiced his client, he has met the constitutional standards.

The instant petition is based on several grounds. We will discuss them seriatim.

1. Failure to secure a ruling on motion in limine and related claims.

Petitioner's main allegation of ineffective assistance was that defense counsel failed to secure a decision on a motion in limine to prohibit the state from using details of a prior conviction if petitioner took the stand to testify on his own behalf. Petitioner argues that counsel improperly advised him that if he took the stand, he would be subject to cross-examination with respect to those details, and consequently, he gave up his right to testify on his own behalf.

Petitioner filed a motion in limine two days prior to trial wherein he sought to prohibit the state from raising on cross-examination the details of his prior conviction of aggravated assault upon an eighteen-month old child....