Rummel v. Estelle, 76-2946
Citation | 590 F.2d 103 |
Decision Date | 21 February 1979 |
Docket Number | No. 76-2946,76-2946 |
Parties | William James RUMMEL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
William James Rummel, pro se.
Scott J. Atlas, Houston, Tex. (Court-appointed), for petitioner-appellant.
John L. Hill, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Joe B. Dibrell, Gilbert J. Pena, Douglas Becker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Keith W. Burris, Asst. Crim. Dist. Atty., San Antonio, Tex., for Crim. Dist. Atty. of Bexar County, Texas.
Michael C. Kuhn, Asst. Dist. Atty., Houston, Tex., for Dist. Atty. of Harris County Texas.
Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Tex., for Henry M. Wade, Crim. Dist. Atty.
Appeal from the United States District Court for the Western District of Texas.
Before THORNBERRY, GOLDBERG and CLARK, Circuit Judges.
This court en banc has disposed of petitioner's assertion that his sentence violated the eighth amendment. The responsibility for determining Rummel's second contention that he was denied effective assistance of counsel for his defense has been remanded to the panel. 587 F.2d 651 at 662.
Two attorneys represented Rummel in connection with the state charges. The first was appointed approximately one month prior to the trial, and the second, whose effectiveness is not challenged, was appointed on the date of the trial to assist the first. Rummel asserts that his first appointed attorney failed to conduct an independent pre-trial investigation into the factual basis of the state's charges and neglected to seek out and interview witnesses whose testimony the petitioner had informed him would buttress his defense. These allegations are not contradicted in the record, and it cannot be said that, assuming they are true, the petitioner is entitled to no relief as a matter of law.
A criminal defendant has the right to be represented by counsel "reasonably likely to render and rendering reasonably effective assistance." Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974), Quoting Mackenna v. Ellis, 280 F.2d 592, 599 (5th Cir.), Cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1960). Since "investigation and preparation are the keys to effective representation," ABA Projects on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function 224 (App. Draft 1971), court-appointed counsel have a duty to interview potential witnesses and "make an independent examination of the facts, circumstances, pleadings and laws involved." Von Moltke v. Gillies,332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309, 319 (1948). See Pennington v. Beto, 437 F.2d 1281 (5th Cir. 1971); United States v. Decoster, 159 U.S.App.D.C. 326, 333, 487 F.2d 1197, 1204 (1973), Appeal after remand --- U.S.App.D.C. ---, --- F.2d ---- (1976), Opinion vacated and rehearing en banc granted, --- F.2d --- (1977); McQueen v. Swenson,498 F.2d 207, 217 (8th Cir. 1974). Rummel's allegations are sufficient to raise the issue whether his attorneys discharged this responsibility. The fact that they performed other tasks required of them such as interviewing their client and cross-examining witnesses for the prosecution obviously is not dispositive. Nor is the fact that Rummel knew only where the potential witnesses...
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...include " 'an independent examination of the facts, circumstances, pleadings and laws involved.' " Id., at 1253 (quoting Rummel v. Estelle, 590 F.2d 103, 104 (CA5 1979)). The scope of the duty, however, depends on such facts as the strength of the government's case and the likelihood that p......
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